EUPillar C v C Court of Session (Inner House, Extra Division), [2008] CSIH 34

Summary

The case concerned four children, aged 15, 12, 8 and 6. The parents had married in the UK in 1989 and moved to several countries. Whilst living in Spain, the parents separated. Following the breakdown of the marriage, in 2001, the mother moved to France. The father moved to the same area. Custody proceedings were initiated in France, resulting in the mother being designated as the primary carer and the father being allocated access rights. During a period of contact in July 2005, the father removed the children to South-East Asia. After six months of travelling, they settled, undetected, in the Philippines. They remained there until November 2006 whereupon they moved to Scotland. The father never let the mother know where the children were but she never stopped trying to locate them. In the autumn of 2007, the mother discovered the location of the children and initiated Hague Child Abduction Convention return proceedings in Scotland. The father argued that in terms of Article 12 of the Hague Convention the children had settled in their new environment in Scotland, and that the older children objected under Article 13(2) of the Hague Convention to being returned to France. At the first instance, the Outer House of the Court of Session (Lord Turnbull) rejected the father’s submission and ordered the return of the children. Lord Turnbull accepted that Article 12 of the Hague Convention applied because the proceedings were initiated in Scotland more than 12 months after the abduction but decided that the children had not settled in Scotland because the father was hiding them there from the mother and he was a fugitive from justice facing extradition to France. In relation to Article 13(2) of the Hague Convention he exercised his discretion to order the return of the children to France despite the objections to return by the older children at least in part because he believed that the father had manipulated the views of the children. The first instance decision on the Hague Convention was upheld on appeal and the children were ordered to be returned to France. In relation to the Brussels IIa Regulation, the Inner House highlighted the Art 11(3) obligation to act expeditiously in intra-EU Hague return proceedings and gave it as part of the reason why it rejected the father’s motion to adjourn the case to enable him to get legal representation for the appeal (he was represented before the Lord Ordinary but sacked his lawyers before the appeal). Reference was made also to Art 11(4) of Brussels IIa. It was concluded that this provision was irrelevant in the given case as the defendant father had not invoked the grave risk of harm defence at the first instance and it was not open to him to raise that issue on appeal. Finally, the Inner House discussed Art 15 of the Regulation which deals with the transfer of parental responsibility proceedings. The reason for addressing this provision was that the defendant father had suggested that Scottish courts request that certain proceedings in the courts of France be subject of a transfer to Scotland in accordance with Art 15. The problem, however, was that no proceedings were pending before the French courts. The court therefore concluded that, in the given circumstances, Art 15 was inoperable.