Petition of WT for and Order under Child Abduction & Custody Act 1985 [2007] CSOH 72

The petitioner was a Polish national. He was divorced from the children's mother (the respondent). A polish court ordered that the children should reside with the respondent and have contact with the petitioner. In August 2006 the respondent brought the children to Scotland. Since then they have lived in Scotland with their mother and other members of their extended family, who have also recently moved to Scotland. The respondent claimed that the petitioner did not have "rights of custody" in respect of the children within the meaning of the Convention, and therefore did not qualify for the protection granted by the Convention. That issue has been decided in favour of the petitioner by Lady Paton. Prior to their removal the children were habitually resident in Poland. Counsel for the respondent required to satisfy the court here that (a) a defence under Article 13 of the Convention applied and (b) as a result the petition should be refused in respect of one or both children. Article 13 states:- "The judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) the person, institution or other body having the care of the person of the child ... had consented to ... the removal; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Here the court considered whether any of the Article 13 defences were established.