PETITION OF JL AGAINST ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 [2024] ScotCS CSOH_24 (29 February 2024)

PETITION OF JL AGAINST ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 [2024] ScotCS CSOH_24 (29 February 2024)

The court found that the respondent's mental health fragility, history of suicide attempt, and the abusive behaviour of the petitioner, combined with the lack of practical and legal support for the respondent in Spain, created a grave risk that the children's return would expose them to psychological harm or otherwise place them in an intolerable situation. The stabilising factors present in Scotland would be lost upon return to Spain, and the proposed protective measures were insufficient to ameliorate the risk. Accordingly, the grave risk exception under Article 13(b) was established and the return order was refused.

Citation
[2024] ScotCS CSOH_24
Parties
Pursuer: JL; Defender: Orders under the Child Abduction and Custody Act 1985 (Respondent: mother)
Jurisdiction
Scotland
Judgment Date
29 February 2024
Procedural Posture
Petition (child Abduction Return Order) / First Instance Judgment
Outcome
Petition refused; return order not granted.
Legal Topics
Child Abduction, Hague Convention, Custody, Grave Risk Exception, Protective Measures
Family Law International Law Child Abduction Hague Convention Custody Grave Risk Exception Protective Measures

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Parties

JL

Pursuer

Orders under the Child Abduction and Custody Act 1985 (Respondent: mother)

Defender

Procedural Posture

Petition (child Abduction Return Order) / First Instance Judgment

Legal Issues

  1. 1 Whether the return of the children to Spain would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation under Article 13(b) of the Hague Convention.

Ratio Decidendi

The court found that the respondent's mental health fragility, history of suicide attempt, and the abusive behaviour of the petitioner, combined with the lack of practical and legal support for the respondent in Spain, created a grave risk that the children's return would expose them to psychological harm or otherwise place them in an intolerable situation. The stabilising factors present in Scotland would be lost upon return to Spain, and the proposed protective measures were insufficient to ameliorate the risk. Accordingly, the grave risk exception under Article 13(b) was established and the return order was refused.

Court Disposition

Petition refused; return order not granted.

Orders

  • No order for return of the children to Spain under the Child Abduction and Custody Act 1985.