EUPillar HIB Petitioner, known also as B Petitioner, Court of Session (Outer House) [2011] CSOH 187 (Lady Wise)

Summary

The case concerned two boys, aged 14 and 10 respectively, who had been wrongfully retained by their mother in Scotland. The boys were born and brought up in France to parents who were French nationals of Pakistani origin. The mother travelled with the children to Scotland to attend a family wedding but failed to return. She then informed the father that she wished to leave him and would not be coming back to France. The father commenced return proceedings, however, the application was made more than one year after the wrongful retention. The mother opposed the petition on the basis of Art 12 (‘settlement’), Art 13(1)(b) (‘grave risk of harm’) and Art 13(2) (‘child’s objections) of the 1980 Hague Abduction Convention. The Court noted that the provisions of the 1980 Convention were subject to Art 60 of the Brussels IIa Regulation (‘Relations with certain multilateral conventions’), and highlighted the significance of Art 11(4) of the Regulation in relation to the Art 13(1)(b) grave risk of harm defence, and Art 11(2) of the Regulation in relation to the Art 13(2) (defence of ‘child’s objections). The ‘grave risk of harm’ defence was not made out successfully, however, the respondent mother succeeded in establishing the existence of the Art 12 ‘settlement’ defence and the Art 13(2) ‘child ‘s objections’ defence. Although the younger boy was found to be not mature enough for the purposes of Art 13(2) of the 1980 Convention and Art 11(2) of the Regulation, the Court held that the older boy had sufficient maturity and should not be ‘forced to return to a previous environment against his wishes’ (para 21). As the younger boy’s emotional wellbeing was based partly on his relationship with his brother, the Court concluded that the boys should not be separated. The return of the younger boy without the older brother would amount to an “intolerable situation” under Art 13(1)(b) of the 1980 Convention. Moreover, the children were now settled in their new environment and ‘any change to … [the] established status quo would involve risk and uncertainty.’ Accordingly, the return application was refused on the basis of the combination of the ‘child’s objections’ and the ‘settlement’ exceptions to return. In rejecting the Art 13(1)(b) Hague defence Lady Wise gave appropriate weight to Art 11(4) of Brussels IIa acknowledging that adequate protective measures could be put in place in France – the children could live with their mother’s sister in France.