EUPillar IGR (AP) Petitioner, Court of Session (Outer House) [2011] CSOH 208 (Lord Brodie)

Summary

The case concerned a four-year old child born to a Polish mother and an Egyptian father in 2007. The family lived together in Poland until February 2009 when the mother removed the child to Scotland. In autumn 2011 the father initiated return proceedings. The mother resisted the return application on the basis of Art 13(1)(a) (‘acquiescence’); Art 13(1)(b) (‘grave risk of harm’) and Art 12 (‘settlement’) of the 1980 Hague Abduction Convention. When setting out the relevant law, the Court noted that, as Poland was a Member State of the European Union, the Brussels IIa Regulation applied to the present case alongside the 1980 Hague Abduction Convention. In particular, the Court mentioned and quoted Arts 11(4) and 60 of the Regulation. Neither ‘acquiescence’ nor the ‘grave risk of harm’ defence were made out successfully. Although there was a lengthy delay between the removal of the child and the return application (more than 2 years and 7 months), the Court concluded that the father had not acquiesced in the removal. This was not only because he was initially unaware that the mother was in the UK, but also because as a ‘foreigner in a totally alien country’ (an Egyptian living in Poland), he might have had difficulty in obtaining assistance in Poland. In relation to the ‘grave risk of harm’ defence, the Court held that there was not sufficient evidence to conclude that such a risk of harm existed in the present case. Moreover, the relevant Polish authorities would be just as able to make orders for the protection of the mother and the child as a Scottish court would be in the same circumstances. The Court explained the relevance of Art 11(4) of the Regulation in this context, and concluded that ‘in the case of an European Union member state, such as Poland, it is to be assumed that the relevant authorities will be able and willing to take such steps as may appear to be necessary and that they will be effective.’ (para 43). However, the Court may be criticised for not ensuring that adequate arrangements were in place for the mother to return with her child to Poland because Art 11(4) requires adequate measures to “have been made”. The Court then moved to consider Art 12 of the 1980 Convention and found that, as at the time of the decision the child had been in Scotland for nearly three years, he was settled in the new environment and it was therefore not appropriate to order his return to Poland. The Court explained that while Poland was the child’s country of habitual residence when he was abducted, it was no longer so. Consequently, Poland was no longer the forum which would be best placed to determine the merits of the case. The Court recognised that the refusal to return would have negative consequences for the left-behind parent in terms of securing contact with the child and the left-behind parent’s unfamiliarity with Scotland as the forum where the substantive litigation would take place. Nevertheless, as the ‘settlement’ exception to return had been made out successfully and in the judge’s exercise of discretion at large he found that the child’s welfare was more likely to be promoted by refusing his return to Poland rather than ordering his return, the return application had to be refused.