In the Petition of YG v EEP [2017] CSOH 75 (Outer House, Court of Session, 10 May 2017)

Background: In January 2016 the respondent returned to Scotland from Sweden, with a child she had given birth to in Sweden in May 2009. In September2016 a District Court in Sweden ordered that the petitioner, the girl’s father, be granted sole custody of the child on an interim basis, and a detention order was issued for the respondent on suspicion of unlawful abduction of a child. A Sheriff at Edinburgh Sheriff Court refused an application by the Swedish authorities for the arrest and extradition of the respondent. In February 2017 the petitioner lodged a petition seeking an order for the return of his daughter to Sweden. Under Article 12 of the Hague Convention, an order should be made unless the requirements of Article 13 are met (including that there is a grave risk of exposing the child to physical or psychological harm) and the court considers it appropriate to exercise its discretion not to order the child’s return.

Held: The Court concluded that while there was a risk that returning the child to Sweden may be exposed to psychological harm, the risk was not sufficiently serious to be characterised as ‘grave’.

Furthermore, while the court deemed it appropriate to take account of the child’s objections to a return to Sweden, there were a number of factors that outweighed these objections. These factors included that the Swedish courts are best placed to determine what is in the best interests of the child; respect for Swedish judicial processes; recognition of options available to the Swedish courts; the petitioner’s speedy action following the child’s removal; the need to deter child abduction; and the child’s previous history living with her father.