C. v. C. for an Order under the Child Abduction & Custody Act 1985 [2008] CSOH 42

Petition for An Order under the Child Abduction and Custody Act 1985:- The petitioner, a French woman, was married to the first respondent and together they had four children, aged 9, 11, 14 and 17. Here the petitioner sought an order for the return of the three younger children from their father, the first respondent, who lived in Dundee together. Following an acrimonious divorce on 12 February 2002 an order was pronounced by the French Family Court providing that both parents were to exercise custody jointly but that the olderst child was to reside with his father and the other three children were to reside with their mother. On 28 October 2003 decree of divorce was pronounced and the residence arrangements for the respective children were affirmed and both parents were prohibited from removing the children from French territory without the consent of the other. On about 3 July 2005, the first respondent, who had been unhappy with the terms of the settlement imposed by the courts, removed all four from the jurisdiction of the French Courts and flew them to Switzerland and then on to Bangkok. The first respondent and the four children remained in South East Asia until December 2007 when they returned to Dundee. Throughout this time there was no contact between the first respondent and the petitioner advising her of the childrens' whereabouts. Throughout that time the petitioner sought to establish their whereabouts, often using the internet to contact schools, churches and other organisations across the world in a bid to locate them. In France criminal charges were brought against the first respondent, and his sister who had helped him, in light of the children's removal and on 20 November 2006 he was found guilty, in his absence, and sentenced to a period of 30 months imprisonment. The first respondent was arrested and appeared at Edinburgh Sheriff Court on 22 November 2007 when he did not consent to his extradition and was released on bail. The full hearing on his extradition is set for 10 March 2008. In the application here the first respondent argued that the court should refuse to make an order for the return of the children as all of the children were now settled in their new environment in Dundee and their wishes should be taken into consideration. It was submitted on behalf of the petitioner that it had not been demonstrated that the children were now settled in their new environment, in terms of article 12 of the Convention and sought an order for the return of each child to France. Here the court considered (1)the meaning of the phrase "the child is now settled in its new environment" and (2) if it was proved that the children were so settled did the court nevertheless retain a residual discretion to order the child's return. The court here looked at the conduct of the first respondent in dermining if the children were settled in their new environment.

Court: Court Of Session (Scotland)

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