In the Petition of GCMR for an order under the Child Abduction and Custody Act 1985 [2017] CSOH 66 (Outer House, Court of Session, 21 April 2017)

Background: GCMR and the respondent, both Portuguese citizens, had a child who was born in Portugal in September 2006. While both parties had been sharing her care equally since 2009, the girl was wrongfully removed from Portugal by her mother in December 2011. The petitioner took all reasonable steps to ascertain her whereabouts, but the respondent and child were not located at their address in Hamilton until May 2016. The petitioner lodged a petition in November 2016 seeking an order for the return of the child to Portugal, relying on the Hague Convention on the Civil Aspects of International Child Abduction, incorporated into domestic law by the Child Abduction and Custody Act 1985. The respondent relied on an exception to the requirement to order the return of a child, applicable if the child is settled in his or her new environment. The respondent also relied on defences to a return of a child, namely that there was a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation and secondly that the child objected to being returned and had attained an age and degree of maturity at which it is appropriate to take account of her views.

Held: The court recognised that the respondent had wrongly removed the child from Portugal to excise the petitioner from his daughter’s life, and that as such the case was “…in some ways a paradigm case of the type of abduction the Convention was designed to address.” However, the five year passage of time since the child’s removal was considered “so significant that different considerations additional to the aim of a prompt return to the county of habitual residence require to be addressed.”

Lady Wise decided to exercise her discretion in favour of refusing the order, based on a finding that the child was physically and emotionally settled in Scotland, and that because of the child’s objections to returning to Portugal, forcing her to do so would be against her best interests. Lady Wise concluded that the child’s “…strongly held views, coupled with the length of time she has been settled here, lead to those interests prevailing when balanced against the primary purpose of the Convention.”