Appeal by FPS against SM (Court of Session) [2024] CSIH 20 (26 July 2024)

Appeal by FPS against SM (Court of Session) [2024] CSIH 20 (26 July 2024)

The Lord Ordinary did not err in refusing to order the return of the children to Spain under the 1980 Hague Convention. The Spanish custody order was not capable of recognition and enforcement under the 1996 Hague Convention due to lack of evidence that the children were heard. The Lord Ordinary properly exercised...

Source-derived case information.

Citation
[2024] CSIH 20
Parties
Petitioner and Reclaimer: FPS; Respondent: SM
Jurisdiction
Scotland
Judgment Date
26 July 2024
Procedural Posture
Appeal (reclaiming Motion) Under the 1980 Hague Convention for Return of Children / Appeal (inner House, Extra Division, Court of Session)
Outcome
Appeal refused
Legal Topics
Child Abduction Under the 1980 Hague Convention, Recognition and Enforcement of Foreign Orders Under the 1996 Hague Convention, Child Objections to Return, Best Interests of the Child, Comity and Recognition of Foreign Judgments
Family Law Private International Law Child Abduction Child Abduction Under the 1980 Hague Convention Recognition and Enforcement of Foreign Orders Under the 1996 Hague Convention Child Objections to Return Best Interests of the Child Comity and Recognition of Foreign Judgments

Source-derived case record

Summary, issues, holding and outcome

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Parties

FPS

Petitioner and Reclaimer

SM

Respondent

Procedural Posture

Appeal (reclaiming Motion) Under the 1980 Hague Convention for Return of Children / Appeal (inner House, Extra Division, Court of Session)

Legal Issues

  1. 1 Whether the Lord Ordinary erred in refusing to order the return of children to Spain under the 1980 Hague Convention due to their objections
  2. 2 Whether the recognition and enforcement provisions of the 1996 Hague Convention should have been applied to the Spanish custody order
  3. 3 Extent to which a foreign custody order is determinative in a 1980 Hague Convention return application

Ratio Decidendi

The Lord Ordinary did not err in refusing to order the return of the children to Spain under the 1980 Hague Convention. The Spanish custody order was not capable of recognition and enforcement under the 1996 Hague Convention due to lack of evidence that the children were heard. The Lord Ordinary properly exercised discretion under Article 13, giving due weight to the children's objections and welfare, and the existence of the Spanish order was a factor but not determinative. There was no basis for appellate interference.

Court Disposition

Appeal refused

Orders

  • The reclaiming motion is refused.