NJC v NPC & Ors, Re Order Under the Child Abduction & Custody Act 1985 [2008] ScotCS CSIH_34 (10 June 2008)

NJC v NPC & Ors, Re Order Under the Child Abduction & Custody Act 1985 [2008] ScotCS CSIH_34 (10 June 2008)

The Lord Ordinary was entitled to find that the children were not settled in Scotland due to their fugitive status, concealment, and the uncertainty of the first respondent's situation. The Lord Ordinary properly exercised his discretion under Article 13 in ordering the return of the children despite their objections, given evidence of manipulation and the need for the French courts to determine their best interests. The French courts had jurisdiction, and the first respondent was not denied a fair hearing. The reclaiming motion is refused.

Citation
[2008] ScotCS CSIH_34
Parties
Petitioner: NJC; First Respondent: NPC; Curator Ad Litem: Kelly, QC
Jurisdiction
Scotland
Judgment Date
10 June 2008
Procedural Posture
Petition Under Child Abduction & Custody Act 1985 / Appeal (reclaiming Motion) Against Lord Ordinary's Interlocutor Ordering Return of Children
Outcome
Reclaiming motion refused; interlocutor of Lord Ordinary affirmed
Legal Topics
Child Abduction, Custody and Residence, Hague Convention 1980, Habitual Residence, Jurisdiction of Foreign Courts, Children's Objections, Grave Risk Exception, Extradition
Family Law International Law Child Law Child Abduction Custody and Residence Hague Convention 1980 Habitual Residence Jurisdiction of Foreign Courts +3 more

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Parties

NJC

Petitioner

NPC

First Respondent

Kelly, QC

Curator Ad Litem

Procedural Posture

Petition Under Child Abduction & Custody Act 1985 / Appeal (reclaiming Motion) Against Lord Ordinary's Interlocutor Ordering Return of Children

Legal Issues

  1. 1 Whether the Lord Ordinary was entitled to find the children not settled in Scotland under Article 12 of the Hague Convention
  2. 2 Whether the Lord Ordinary properly exercised discretion under Article 13 in ordering return despite children's objections
  3. 3 Whether the French court had jurisdiction to make the custody order

Ratio Decidendi

The Lord Ordinary was entitled to find that the children were not settled in Scotland due to their fugitive status, concealment, and the uncertainty of the first respondent's situation. The Lord Ordinary properly exercised his discretion under Article 13 in ordering the return of the children despite their objections, given evidence of manipulation and the need for the French courts to determine their best interests. The French courts had jurisdiction, and the first respondent was not denied a fair hearing. The reclaiming motion is refused.

Court Disposition

Reclaiming motion refused; interlocutor of Lord Ordinary affirmed

Orders

  • Refusal of adjournment for first respondent to obtain legal representation
  • Affirmation of order for return of children C, S, and O to France under the Child Abduction & Custody Act 1985