JA, Re An Order Under the Child Abduction and Custody Act 1985 [2011] ScotCS CSOH_215 (23 December 2011)

JA, Re An Order Under the Child Abduction and Custody Act 1985 [2011] ScotCS CSOH_215 (23 December 2011)

The court refused to order the return of the children to Spain because the elder child objected to return and was of sufficient maturity, the objections were authentically his own and strongly held, and there was no evidence of adequate arrangements to protect the children after return; discretion was exercised in favour of the children's wishes, despite the absence of formal consent by the petitioner.

Citation
[2011] ScotCS CSOH_215
Parties
Petitioner: A; Respondent: Respondent
Jurisdiction
Scotland
Judgment Date
23 December 2011
Procedural Posture
Petition Under the Child Abduction and Custody Act 1985 / Final Judgment on Interim Application
Outcome
petition refused
Legal Topics
Child Abduction, Custody, Hague Convention, Brussels II Bis, Parental Responsibility
Family Law International Law Child Abduction Custody Hague Convention Brussels II Bis Parental Responsibility

Case Brief

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Parties

A

Petitioner

Respondent

Respondent

Procedural Posture

Petition Under the Child Abduction and Custody Act 1985 / Final Judgment on Interim Application

Legal Issues

  1. 1 Whether the removal of children from Spain to Scotland was wrongful under the Hague Convention
  2. 2 Whether any exceptions under Article 13 of the Hague Convention apply to prevent return
  3. 3 Whether the children's objections and their maturity justify refusal of return

Ratio Decidendi

The court refused to order the return of the children to Spain because the elder child objected to return and was of sufficient maturity, the objections were authentically his own and strongly held, and there was no evidence of adequate arrangements to protect the children after return; discretion was exercised in favour of the children's wishes, despite the absence of formal consent by the petitioner.

Court Disposition

petition refused

Orders

  • No order for return of children to Spain
  • Children to remain in Scotland pending final custody determination by Spanish courts