S.8 of the CACA 1985 does not prohibit the court from granting an application solely because there had been no request from the judicial or administrative authorities of a contracting state in terms of art 15 of the Convention. A court should also not look at how a parent exercised custody rights only at whether they had such rights.Court: Court Of Session (Scotland)
Lord Ordinary refused original petition in which the petitioner sought a declarator that the removal of her children to America was wrongful within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction. The children were at the time living with the respondent (Father) in terms of a residential order. The primary basis of the refusal had regard to the fact that there was no written request from the American courts or administrative authorities seeking assistance of the Scottish courts. The petitioner and reclaimer pleads that the Lord Ordinary had misunderstood the law in relation to the operation of section 8 of the Child Abduction and Custody Act 1985 and Article 15 of the Hague Convention.
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n a family action, the Defender withheld details of her current address. At proof, the Pursuer objected to the non disclosure. When the action was raised, the Defender had admitted the address in the instance in her defences. She later changed her address, but did not provided details of her up to date address. She averred that this was due to fear for her safety. The defences included bare allegations of physical and verbal abuse by the Pursuer, although the most recent incident was said to have happened in December 2006. The Pursuer submitted that a party to an action should be designed by reference to his or her name and address. If a partyís address changed during the course of proceedings, the onus was on that party to disclose an up to date address. In this case, disclosure of the Defenderís present address was necessary for any contact order that the Court might make. The Defender maintained that the onus was on the Pursuer to seek the Defenderís up to date address. The Defender also suggested that, if there were sufficient averments to support non disclosure, the Court had the discretion to allow a party to withhold personal details such as their current address. The Defender argued that her averments about the Pursuerís conduct were sufficient for this purpose, although she accepted that the absence of an up to date address might cause problems in relation to enforcement of any Court order relating to contact. The Sheriff had to determine whether, in the circumstances of this case, the Defender was justified in refusing to disclose her present address
The Pursuer and the Defender have a child, GM. When they separated, The Defender obtained full parental responsibilities and rights in relation to GM. The Defender decided that she would move to Spain to live permanently, taking GM with her. The Pursuer raised proceedings for inter alia interdict. The Defender craved a specific issue order under Section 11 (2) (e) of the Children (Scotland) Act 1985 allowing her to move GM from the UK to live permanently in Spain. She was ordained to lead at Proof. Having heard evidence, the Sheriff indicated that there appeared to be no Scottish authority setting out the law and the factors to be considered in "emigration" cases. He was advised that there were no cases of a parent seeking to take a child to a non English speaking country, although the Sheriff was aware of one unreported case. It was agreed that the test was the best interests of the child. Section 11 (7) of the 1995 Act listed three factors that the Court had to consider, although those were not the only factors. The Sheriff listed 11 factors which he considered should be weighed in the balance. He went on to consider each of those factors in light of the evidence which he had heard and came to the conclusion that it would not be in GMís best interests to make an order to enable the Defender to take him to live in Spain. The Defender did not speak Spanish and nor did her partner or GM. GM would have to go to a Spanish speaking school. He had educational difficulties and needs and he received support at school in Scotland. Neither the Defender nor her partner had a job in Spain. GMís close relationship with the Pursuer andother relatives would be adversely affected if he moved to Spain. GM had made it clear that he did not want to move to Spain. It appeared to the Sheriff that the proposed move had been ill thought out, or at least not properly thought through or well planned. He did not think that the Defenderís proposed move could be described as reasonable.
Held that a couple stopped co-habiting for the purposes of Family Law (Scotland) Act 1985 ss.10 (3)(a), 27 when the husband ceased to stay overnight at the property. The court could not fix an exact date but gave a time bracket in which co-habitation ceased.Court: Court Of Session (Scotland)
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.
Appeal - This was an appeal by the parents of two children against a decision of the learned sheriff who held that the grounds of referral had on the evidence led before him been established. The child was the son of the appellants. The learned sheriff found as a matter of fact that the child was under the supervision of the Children's Hearing. Grounds for referral were established at Glasgow Sheriff Court. The child was on the child protection register under the category of emotional abuse. The application for a stated case posed nine questions, the nature of which indicated that the attack was directed against the restriction in the ambit of any evidence which Dr Herbison and Professor Golding might give. The Sheriff Principal considered this and was also asked to comment on the decision of the Scottish Legal Aid Board not to grant legal aid to the parents for this appeal
The mother (defender) and father (pursuer) remain married to each other but divorce proceedings are pending following their split in July 2004. The only issue here was whether the father should have a residence order to both his children and, if not, what should be the proper arrangement for contact. The evidence at proof disclosed an atmosphere of distrust and hostility between the parties. The court here looked at the personal and living circumstances of the pursuer, in Wallyford, and the defender, in Crookston, Glasgow, in determining what would be best for the two children aged seven and five.
Here the pursuer concluded for an order ordaining the defender to return his two and a half year old chilcd "M" to Scotland, for a residence order providing that M should reside with him, for an order for delivery of M into his care and control, and for interdict prohibiting the defender from removing M from his care and control or from Scotland. In June 2005 the defender took M to see her family in Pakistan. She was due to return home on 18 August 2005. Having twice changed her travel arrangements, the defender did not return to Scotland. She is presently in Pakistan with M. On 8 May 2006 Lady Smith made an interim Order (1) finding and declaring that M was born in Edinburgh and was, prima facie, habitually resident in Scotland and (2) ordaining the defender to return M to Scotland. Despite that Order, the defender has not returned M to Scotland. Here the defender made a motion to sist the proceedings in Scotland after the defender being served with the Scottish proceedings on 13 June 2006 (She has now instituted proceedings in Pakistan in the form of a Guardianship Application). The pursuer sought:- "a residence order limited to arrangements for the child M to reside with the Pursuer from 1pm on Friday to 1pm on Monday each week, or such other periods as the Court shall order or the parties agree, and otherwise to reside with the Defender, on the basis that the Pursuer undertakes that he will make no objection to the Defender lodging a Minute for Variation of said arrangements (if so advised) on her return to the UK".
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.
The pursuer raised divorce proceedings in Aberdeen Sheriff Court in 2003, which were later remitted to the Court of Session in 2009. The pursuer concluded for divorce on the grounds that the marriage had broken down irretrievably because of the defenderís desertion for a continuous period of more than two years. The defender had concluded for a residence order in relation to the child of the marriage.
When the case called before the court for proof on 9 November 2010, the pursuer abandoned his action. However, the Outer House noted that Rule of Court 49.32 provides that notwithstanding abandonment of an action by a pursuer, the court may allow the defender in a family action to pursue an order or claim sought in his or her defences. The court accordingly heard proof with regard to the defenderís claim for a residence order.
The pursuer and the defender were married in Abu Dhabi on 11 November 1996. There was a child of the marriage, R, who was born on 5 August 1997. In 2000 the defender left the matrimonial home in Aberdeen (without the knowledge or consent of the pursuer) and took R with her to live in the London area. They continue to reside there. Unfortunately, R suffers from Down's Syndrome to a severely disabling degree.
The court heard evidence from the defender, her brother and a consultant psychologist. Evidence was led to show that R was in good health and there were no concerns of any kind in relation to her well-being, despite the severity of her condition. R was being brought up in a stable and loving environment, which was well suited to meet all of her needs, so that she was a secure, confident, happy and settled child.
Having regard to the welfare of R as the paramount consideration, the court made a residence order under section 11(2)(c) of the Children (Scotland) Act 1995 that R was to live with the defender. The court concluded that R was in a stable and loving environment, all aspects of her care and education were well provided for, and that any disruption to the current residence arrangements would not be in her best interests.
The petitioner was the father of the child who was the subject of dispute. He raised proceedings under the Child Abduction and Custody Act 1985 and sought an order for the return of the child in terms of Article 12 of the Convention on the Civil Aspects of International Child Abduction. The respondent, who was the mother opposed the petition. The evidence was based solely on affidavits and oral evidence from the respondent. The petitioner and respondent were married in Annan on 16 September 1998. The child of the marriage, a daughter, was born in Scotland on 10 August 2002. Prior to 2004 both parties lived and worked in Scotland. The petitioner's mother, was from New Zealand but had lived for many years in Scotland. The petitioner had some relatives in New Zealand and prior to 2004 had visited for some months. He had dual nationality as a citizen of New Zealand and Scotland. In 2004 the parties made arrangements to move to live in New Zealand with the child. There was no discussion as to what would happen if the marriage broke down. In preparation for the move the parties sold their house in Scotland, gave up their jobs and made all the other necessary arrangements for departure. They arived in New Zealand in November 2004 and stayed with relatives of the petitioner before renting accommodation for a short period. In early 2005 they purchased a house in Blenheim, Marlborough, New Zealand where they resided with the child. After a few weeks the respondent who is qualified as a nurse obtained employment working nightshift three nights a week. The petitioner thereafter obtained full-time employment as an architectural assistant. After a few months in New Zealand, the respondent became unhappy as she found it difficult to adjust and she was unhappy with her marriage. The Respondent subsequently returned to Scotland with the child. The court here had to decide whether to return the child to New Zealand in terms of the Child Abduction and Custody Act 1985 . (c) crown copyright