PIL instrument(s)

Case number and/or case name

A Petitioner, Court of Session (Outer House) [2011] CSOH 215 (Lord Glennie)

Details of the court

Scotland, First Instance

Articles referred to by the court

Date of the judgement

23 December 2011

Appeal history

CJEU's case law cited by the court

Summary

The case concerned two children aged 11 and 5, who had been wrongfully removed by their mother from the country of their habitual residence, Spain, to Scotland. The father initiated return proceedings. In the meantime, an interim order was made by a Spanish court which entitled the father to have the children reside with him until the final resolution of the custody proceedings that had been commenced in Spain by the mother prior to the removal of the children. In relation to this interim order the Outer House noted that the Spanish court had failed to give consideration to Art 11(2) of the Brussels IIa Regulation and did not seek the views of the children. The Court remarked that this pointed towards non-recognition of the Spanish judgment in terms of Art 23(b) of Brussels IIa. The mother opposed the father’s return application on the following grounds: ‘consent’ (Art 13(1)(a) of the 1980 Hague Abduction Convention (hereafter: ‘HAC’); ‘intolerable situation’ (Art 13(1)(b) of the 1980 HAC) and ‘child’s objections’ Art 13(2) of the 1980 HAC). In relation to the ‘intolerable situation’ objection, the judge considered Art 11(4) of the Brussels IIa Regulation and concluded that adequate arrangements to secure the protection of the children after their return could not be made as both children were emotionally dependent on the mother and the father offered no undertakings to ensure that he would assist both financially and with practical arrangements to guarantee a continuity of contact between mother and children upon their return to Spain. Despite this finding the judge decided not to pursue the avenue of Art 13(1)(b). Instead, he refused the application on the grounds of child’s objections. In particular, the judge concluded that the older child had objected to being returned to Spain and had attained an age and degree of maturity at which it was appropriate to take account of his views (Art 13 of the 1980 HAC). In exercising his discretion, the judge took account of the fact that it had been informally agreed between the parties that the children should reside with their mother in Scotland (although the ‘consent’ exception to return was not successfully made out as no formal agreement had been reached). The judge explicitly refused to return both children on the basis of Art 13(2) HAC but only the older child’s view had been sought by the court. It might have been more lawful to refuse the return of the younger child on the basis of Art 13(1)(b) HAC - “intolerable situation” - on the basis that she would have been separated from her elder brother if returned to Spain.