GCMR, Re An Order Under The Child Abduction and Custody Act 1985 [2017] ScotCS CSOH_66 (21 April 2017)

GCMR, Re An Order Under The Child Abduction and Custody Act 1985 [2017] ScotCS CSOH_66 (21 April 2017)

The court found that IAR is settled in Scotland both physically and emotionally, satisfying the Article 12 defence. The grave risk defence under Article 13b was not established due to lack of sufficient independent evidence of harm. The child’s objections to return were genuine and, given her age and maturity, were relevant under Article 13. Exercising discretion, the court held that the length of time settled, the child’s strong objections, and her welfare outweighed the Convention's primary purpose, and refused to order her return to Portugal.

Citation
[2017] ScotCS CSOH_66
Parties
Petitioner: GCMR; Respondent: IAR's mother (name not specified)
Jurisdiction
Scotland
Judgment Date
21 April 2017
Procedural Posture
Petition Under the Child Abduction and Custody Act 1985 / Final Judgment at First Instance (outer House, Court of Session)
Outcome
Petition refused; order for return not granted.
Legal Topics
Child Abduction, Hague Convention, Custody, Habitual Residence, Settlement Defence, Grave Risk Defence, Child's Objection, Discretionary Return
Family Law International Law Child Abduction Hague Convention Custody Habitual Residence Settlement Defence Grave Risk Defence +2 more

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Parties

GCMR

Petitioner

IAR's mother (name not specified)

Respondent

Procedural Posture

Petition Under the Child Abduction and Custody Act 1985 / Final Judgment at First Instance (outer House, Court of Session)

Legal Issues

  1. 1 Whether the child IAR is settled in her new environment under Article 12 of the Hague Convention
  2. 2 Whether there is a grave risk of physical or psychological harm to IAR if returned to Portugal under Article 13b
  3. 3 Whether IAR objects to return and has attained sufficient age and maturity under Article 13

Ratio Decidendi

The court found that IAR is settled in Scotland both physically and emotionally, satisfying the Article 12 defence. The grave risk defence under Article 13b was not established due to lack of sufficient independent evidence of harm. The child’s objections to return were genuine and, given her age and maturity, were relevant under Article 13. Exercising discretion, the court held that the length of time settled, the child’s strong objections, and her welfare outweighed the Convention's primary purpose, and refused to order her return to Portugal.

Court Disposition

Petition refused; order for return not granted.

Orders

  • First and third pleas in law for the respondent sustained.
  • Prayer of the petition refused.