MP FOR ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 [2023] ScotCS CSOH_58 (25 August 2023)

MP FOR ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 [2023] ScotCS CSOH_58 (25 August 2023)

The court found that X and Y are being wrongfully retained in Scotland under Article 3 of the Hague Convention, but the grave risk defence and child objection defence under Article 13 are established. X has suffered severe psychological harm and suicidal ideation in Poland, and both children object to return, with X's views rational and mature. Protective measures in Poland are insufficient to ameliorate the risk. The court exercises discretion not to order return.

Citation
[2023] ScotCS CSOH_58
Parties
Petitioner: MP; First Respondent: First Respondent; Fourth Respondent: Fourth Respondent (X)
Jurisdiction
Scotland
Judgment Date
25 August 2023
Procedural Posture
Petition for Orders Under the Child Abduction and Custody Act 1985 / Final Judgment
Outcome
petition refused
Legal Topics
Hague Convention, Child Custody, Grave Risk Defence, Child Objection Defence
Family Law International Child Abduction Hague Convention Child Custody Grave Risk Defence Child Objection Defence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

MP

Petitioner

First Respondent

First Respondent

Fourth Respondent (X)

Fourth Respondent

Procedural Posture

Petition for Orders Under the Child Abduction and Custody Act 1985 / Final Judgment

Legal Issues

  1. 1 Whether the retention of X and Y in Scotland is wrongful under the Hague Convention
  2. 2 Whether there is a grave risk of harm or intolerable situation if X and Y are returned to Poland
  3. 3 Whether X and Y object to return and have attained sufficient maturity for their views to be considered

Ratio Decidendi

The court found that X and Y are being wrongfully retained in Scotland under Article 3 of the Hague Convention, but the grave risk defence and child objection defence under Article 13 are established. X has suffered severe psychological harm and suicidal ideation in Poland, and both children object to return, with X's views rational and mature. Protective measures in Poland are insufficient to ameliorate the risk. The court exercises discretion not to order return.

Court Disposition

petition refused

Orders

  • No order for return of X and Y to Poland under the Child Abduction and Custody Act 1985
  • Children to remain residing in Scotland