PIL instrument(s)

Case number and/or case name

ERG (AP) Petitioner, also known as G v G Court of Session (Outer House), [2011] CSOH 126 (Lord Stewart)

Details of the court

Scotland, First Instance

Articles referred to by the court

Date of the judgement

04 August 2011

Appeal history

CJEU's case law cited by the court

Summary

This case involved a 3-year old girl who had been removed from Latvia to Scotland by her mother. The father initiated return proceedings. The issue that arose was whether an interim residence order issued by a Latvian court in favour of the mother in the course of the return proceedings superseded the father’s return petition. The court agreed with the reasoning of the CJEU in Povse that an interim or provisional custody order did not amount to a “judgment on custody” for the purposes of Art 10(b)(iv) and did not transfer jurisdiction (para. 44). However, the effect of the Latvian interim residence order was to authorise the child’s residence with her mother in Scotland until a final judgment on custody was made by the Latvian court. Consequently, the judge refused to accept that the retention of the child was still wrongful in terms of the 1980 Hague Abduction Convention and Brussels IIa. Moreover, to order the return of the child in these circumstances may be “to deny recognition to the judgment of a Member State court, contrary to Council Regulation (EC) 2201/2003 Article 21” (para. 45). Accordingly, the father’s return application was refused. The judge clarified that the Scottish court did not aspire to resolve the issues of parental rights in relation to the child but continued to respect the jurisdiction of the Latvian courts in this respect. Similarly, the refusal of the father’s return application was “without prejudice to the question of recognition and enforcement of any subsequent Latvian court order for return of the child in terms of Council Regulation (EC) 2201/2003 Arts 11.8 and 40-42” (para. 47). Lord Stewart accepted that it was a matter of concern that this was a case of a “wrongful removal” under Art 3 of the Hague Child Abduction Convention (para 31). He did not rule that the father or the Latvian Central Authority had withdrawn the Hague application and therefore in the absence of an applicable Hague Convention defence (Art 13) he should have ordered the return of the child to Latvia. His decision is very pragmatic because the Latvian courts had given an interim order allowing the mother to have interim custody of the child in Scotland. Perhaps Lord Stewart could have suspended his decision on return to get the Latvian Central Authority/applicant to withdraw the return application in the light of the interim custody order in Latvia.