As others see them

The recent decision of Lord Glennie in the case of A, Petitioner [2011] CSOH 215 (23 December 2011), is one of the very rare cases where the court has refused to make a return order under the Child Abduction and Custody Act 1985. The case has a number of interesting features, but perhaps the most significant is the consideration of how the court should regard child abduction proceedings within the context of foreign court proceedings and judgments concerning the residence of children. Given that very many of the child abduction petitions before the Scottish courts postdate proceedings in other jurisdictions, this decision has wide application and deserves to be carefully considered. 

A, Petitioner concerned two children, aged 11 and five, who had been taken by their mother from Spain. She argued that the court should exercise its discretion in terms of article 13 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and refuse the prayer of the petition, in terms of which an order for return of the children to Spain was sought. The mother was, therefore, arguing the classic “consent”, “intolerable situation” and “child’s objection” defences before the court. 

The facts were that days before the mother left Spain with the children, she filed an application with the local Spanish court seeking to formalise her position by an order for custody (as termed in the Spanish jurisdiction) of the children in her favour. After she left, the father counterclaimed, making an interim application in the Spanish proceedings for an order entitling him to have the children reside with him until conclusion of the action commenced by the mother. The mother was aware of the application by the father but did not return to Spain for the court hearing. 

Evidence was heard from the father and others. Allegations were made by the father at that hearing, which allegations were, in respect that the mother was not present in court to deny them, taken to be confessed by her. The Spanish court pronounced an order, in the absence of the mother, in the father’s favour. 

Notwithstanding the requirement under the Spanish Penal Code that the Spanish court must consider what is in the best interests of the children, the court did not seek the views of the children – which, it was noted by Lord Glennie, was contrary to article 11.2 of Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, commonly known as Brussels II-bis. It was further highlighted by Lord Glennie that this failure to comply with article 11.2 was “a factor which points towards non-recognition of the Spanish judgment in terms of article 23 of Brussels II-bis”.  

Effect of interim nature of (Scottish) petition proceedings

It was accepted by both parties that the Spanish court had jurisdiction to make appropriate final orders in relation to the children, who retained a Spanish habitual residence. It was acknowledged by counsel for the father that the extant order of the Spanish court was merely an interim order. Lord Glennie acknowledged that the application him was also of such a nature. Thus, the effect of the petition proceedings before the Scottish court was simply to deal, on an interim basis, with where (and, in this case, accordingly with whom) the children should live, until a decision on the merits was ultimately taken by the Spanish court.  

Effect of there being an extant order of from a court in the state of habitual residence

The Scottish court had to consider its role in determining the application for return when (1) it was accepted that a court in another jurisdiction was the appropriate court to make final orders, and (2) there was already in existence a judgment from that court. Both parties accepted that the terms of the Spanish order were not decisive of the application before the Scottish court – a position approved of by Lord Glennie. 

His Lordship also went on to underline that it is for the person resisting an order for return – here the mother – to bring themselves within the terms of the article 13 exceptions and to persuade the court that discretion should be exercised in favour of a refusal of the application for return. He further noted that the “judgment of the Spanish court on an interim application does no more, in my opinion, than reinforce or confirm that starting point”. That is to say, it had no significance beyond reiterating the starting point, in terms of article 3 of the Hague Convention, that children who have been wrongly removed from their state of habitual residence ought to be returned.  

Non-recognition of a foreign judgment

Consideration was given to the extent to which a properly made and competent judgment of a foreign court ought to be recognised where the opinions of the children have not been sought, contrary to article 11.2 of Brussels II-bis. Article 23 of Brussels II-bis provides the grounds of non-recognition for judgments relating to parental responsibility, including (b) that the court is not to recognise a judgment where the child has not been given the opportunity to be heard (except in case of emergency) – as happened to be the case with the order of the Spanish court. 

This is potentially highly significant in practice: you should be looking behind the face of any judgment, finding out what the process was that led to the order being made, and examining whether the order complied with the domestic state’s laws and also broader EU legislation/case law. 

Article 13 defences and the options available to the court

Submissions were made for the mother that the court should exercise its discretion and refuse to return the children, under each of the classic article 13 defences: (a) that the father had consented to the children being removed from Spain; (b) that the children, if returned would be at “grave risk” of being exposed to “physical or psychological harm or otherwise place[d] in an intolerable situation”; and (c) that the children objected to being returned, and that they had attained an age and degree of maturity such that it was appropriate to take account of their views. 

The court was not prepared to find that the removal was with consent. In terms of article 13(b), the court accepted that the children had a significant physical and emotional dependence on their mother. It was noted that the terms of the Spanish court order, which would likely be enforced in the event of a return, would result in an enforced absence from the mother. The court took the view that that would place the children in an intolerable situation. 

It was clear however that if practical steps were taken to address these difficulties – as is routine in cases such as this, where undertakings are given that accommodation will be provided, support made and the like – the court would be unable to refuse return. This is against the background of the terms of the Hague Convention and Brussels II-bis, which were commented on by Lord Glennie, where the court is entitled to rely on “the trust to be placed in the courts of the country to which the child is to be returned to put in place appropriate protective measures to deal with any difficulties which the children may experience on their return”. 

Consideration was given to whether the court could/should refuse the application in hoc statu, leaving the petition in place to allow a final decision to be made after evidence was made available that satisfactory provisions had been put in place by the Spanish court in the event of a return. Ultimately the petition was dismissed simpliciter, but it is worth keeping this in mind in future cases where there are problems with undertakings: both counsel accepted that it was perfectly competent for an in hoc statu refusal to be made.

The court was prepared to find that the exception in article 13(c) was made out. Both parties accepted that the elder child objected to being returned and that his age (11) and maturity were such that his views should be taken into account. A child psychologist had been appointed on joint instruction to ascertain, on a restricted remit, the child’s views. 

The court therefore considered whether it was appropriate that to exercise its discretion and refuse the petition. Reference was made to the opinion of Baroness Hale in Re M and another (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288, where the court considered that as the Hague Convention itself allows the court to exercise discretion, such discretion is “at large” and not principally in terms of the Convention objectives. Lord Glennie took the view in the present case that the objections of the child were “entitled to carry great weight”, and in that regard and taking account of the whole circumstances surrounding the removal of the children from Spain, he was prepared to exercise his discretion “in favour of the wishes of the children” and refused to make an order for return.

The children, therefore, are to remain here with their mother pending a final decision being taken by the Spanish courts on what orders are in their best interests. Whether this will turn out simply to have been round 1 before the Scottish courts for this family remains to be seen.