DCR, Re an Order Under the Child Abduction and Custody Act 1985[2011] ScotCS CSOH_83 (13 May 2011)

DCR, Re an Order Under the Child Abduction and Custody Act 1985[2011] ScotCS CSOH_83 (13 May 2011)

The court found that the retention of ER in Scotland was wrongful under Article 12, that the respondent failed to establish a grave risk of harm or intolerable situation under Article 13, and that ER's objections were not sufficiently independent or mature to justify refusal. The court exercised its discretion in favour of return, emphasizing the ethos of the Convention and the adequacy of Belgian mechanisms to safeguard ER's welfare.

Citation
[2011] ScotCS CSOH_83
Parties
Petitioner: DR; Respondent: JS
Jurisdiction
Scotland
Judgment Date
13 May 2011
Procedural Posture
Petition Under the Child Abduction and Custody Act 1985 / Second Hearing Before the Outer House, Court of Session
Outcome
Order for return of the child to Belgium granted; respondent's pleas-in-law repelled; further hearing to be fixed for practical arrangements.
Legal Topics
International Child Abduction, Hague Convention, Custody Rights, Child Welfare
Family Law International Law International Child Abduction Hague Convention Custody Rights Child Welfare

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Parties

DR

Petitioner

JS

Respondent

Procedural Posture

Petition Under the Child Abduction and Custody Act 1985 / Second Hearing Before the Outer House, Court of Session

Legal Issues

  1. 1 Whether the retention of the child ER in Scotland is wrongful under Article 12 of the Hague Convention
  2. 2 Whether there is a grave risk that return would expose ER to physical or psychological harm or otherwise place her in an intolerable situation under Article 13
  3. 3 Whether ER objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views under Article 13

Ratio Decidendi

The court found that the retention of ER in Scotland was wrongful under Article 12, that the respondent failed to establish a grave risk of harm or intolerable situation under Article 13, and that ER's objections were not sufficiently independent or mature to justify refusal. The court exercised its discretion in favour of return, emphasizing the ethos of the Convention and the adequacy of Belgian mechanisms to safeguard ER's welfare.

Court Disposition

Order for return of the child to Belgium granted; respondent's pleas-in-law repelled; further hearing to be fixed for practical arrangements.

Orders

  • Order for ER's return to Belgium forthwith under the Child Abduction and Custody Act 1985 and Hague Convention Article 12
  • Cause appointed to be heard 'By Order' for arrangements regarding timing and support for ER's return