JP v FM [2014] ScotCS CSIH_19 (11 February 2014)

JP v FM [2014] ScotCS CSIH_19 (11 February 2014)

The Lord Ordinary erred in law by approaching the case as a residence determination rather than a return under the Hague Convention. The facts did not establish that the child M was so settled in Scotland that the mandatory return requirement should be overridden. Even if settlement had been established, the court would have exercised its discretion in favour of return, given the proximity to the one-year period and the Convention's purpose.

Citation
[2014] ScotCS CSIH_19
Parties
Petitioner and Reclaimer: JP; Respondent: FM
Jurisdiction
Scotland
Judgment Date
11 February 2014
Procedural Posture
Petition Under the Hague Convention on the Civil Aspects of International Child Abduction / Appeal (reclaiming Motion) From the Lord Ordinary's Decision
Outcome
Appeal allowed; interlocutor of the Lord Ordinary recalled; petition granted.
Legal Topics
International Child Abduction, Hague Convention, Child Custody, Jurisdiction, Return of Child
Family Law International Law International Child Abduction Hague Convention Child Custody Jurisdiction Return of Child

Case Brief

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Parties

JP

Petitioner and Reclaimer

FM

Respondent

Procedural Posture

Petition Under the Hague Convention on the Civil Aspects of International Child Abduction / Appeal (reclaiming Motion) From the Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the child M was so settled in her new environment in Scotland that the court should refuse to order her return to British Columbia under Article 12 of the Hague Convention
  2. 2 Whether the Lord Ordinary erred in law by approaching the case as a residence determination rather than a return determination under the Convention
  3. 3 Whether the court should exercise its discretion to refuse return if settlement is established

Ratio Decidendi

The Lord Ordinary erred in law by approaching the case as a residence determination rather than a return under the Hague Convention. The facts did not establish that the child M was so settled in Scotland that the mandatory return requirement should be overridden. Even if settlement had been established, the court would have exercised its discretion in favour of return, given the proximity to the one-year period and the Convention's purpose.

Court Disposition

Appeal allowed; interlocutor of the Lord Ordinary recalled; petition granted.

Orders

  • Order the respondent to return the child M to the jurisdiction of British Columbia.
  • Case to be put out By Order to discuss time-tabling and ancillary matters.