Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 126
P310/11	OPINION OF LORD STEWART in the Petition of ERG (AP) Petitioner; for orders under the Child Abduction and Custody Act 1985 ­­­­­­­­­­­­­­­­­________________

Petitioner: Hayhow, advocate, Coutts, advocate; Wright & Crawford

Respondent: Party, Innes, advocate; Balfour + Manson LLP

4 August 2011

[1] The question raised in these proceedings is whether an interim residence order pronounced by a court in the home state in favour of a parent living with the child in the United Kingdom supersedes a Hague Convention request by the central authority of the home state for return of the child. My opinion is that the order does supersede the request for return. Accordingly I shall refuse the Petition for a return order under the Child Abduction and Custody Act 1985.

[2] By his Petition lodged in the Court of Session on 15 March 2011, ERG, resident in Latvia, applied for orders for the return to Latvia of his three-year old daughter EEG. EEG currently resides in Perth, Scotland, with her mother EAG. The mother is the Respondent to the Petition. The Petitioner, the Respondent and the child are citizens and "habitual residents" of the Republic of Latvia. The Petition is founded on a Hague Convention return request said to have been made by "the central requesting authority for Latvia".

[3] The Republic of Latvia and the United Kingdom are signatories of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ["the Hague Convention"]. The Hague Convention has domestic effect in the United Kingdom by virtue of the Child Abduction and Custody Act 1985. The Hague Convention came into force between the Republic of Latvia and the United Kingdom on 1 October 2003. [The Child Abduction and Custody (Parties to Conventions) (Amendment No 2) Order 2011 SI 2011/1081.]

[4] Latvia acceded to the European Union on 1 May 2004. Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ["Brussels II bis"] has effect in Latvia and the United Kingdom. In cases of wrongful removal and retention of children Brussels II bis applies the Hague Convention as complemented by the Regulation. In terms of Article 60 Brussels II bis takes precedence as between participating member states.

[5] The parties married in Latvia on 14 July 2007. EEG was born on 23 October 2007. The parties finally separated on, at latest, 1 January 2009. Following the separation the child lived with the Respondent.

[6] In terms of the Latvian Civil Code, Part One Family Law, Chapter II.3, Articles 177 and 178, joint custody continues when parents separate; daily custody is implemented by the parent with whom the child lives; decisions that significantly affect the development of the child must be taken jointly; and joint custody continues until terminated by agreement or a court order. "Custody" means the rights and duties of parents to care for the child; and "care for a child" includes the right to determine his or her place of residence.

[7] It seems that until about May 2009 the Petitioner exercised access on an informal basis. In about May 2009 the Respondent came to Scotland to find work. She left the child with the maternal grandmother. Access difficulties arose between the Petitioner and the maternal grandmother. The Respondent seems to have travelled to and from Latvia on several occasions in the period to April 2010.

[8] On 12 August 2009 the Petitioner filed an application in Jekabpils District Court, C16093109, for a contact order. On 9 February 2010 Jekabpils District Court ratified an agreement between the parties in terms of which (1) the Respondent was to have physical custody and habitual residence of the child and (2) the Petitioner was to have residential contact with the child one weekend a month and every second public holiday.

[9] In September 2009 the Respondent raised proceedings in Jekabpils District Court, C16100309, for divorce on the ground, apparently, of the Petitioner's conduct. On 9 February 2010, no basis for divorce on the ground of conduct having been, or having yet been established, the proceedings were adjourned until 2012 to allow dissolution on the ground of three years separation.

[10] On 2 April 2010 the Respondent brought the child to live with her in Scotland.

[11] On 10 June 2010, on appeal at the instance of the Respondent, the ratification order of 9 February 2010 was annulled by Zemgale Regional Court on the ground that the meaning and effect of the ratification order had not been explained to the parties. Case C16093109 was remitted to Jekabpils District Court.

[12] On 4 October 2010 the Respondent lodged a counterclaim in the proceedings C16093109 for sole custody of the child. On 16 November 2010 Jekabpils District Court refused the Respondent's application for sole custody. On 21 December 2010 the Petitioner amended his application C1609301 to apply for a physical custody and habitual residence.

[13] On 26 April 2011 on the Respondent's motion in application C1609301, Jekabpils District Court award physical custody and habitual residence to the Respondent ad interim. A full hearing has been fixed for 5 August 2011.

[14] In translation the decision of 26 April [No 7/2 of Process] proceeds on a narrative that includes the following: "... EEG ... since 2 April 2010 has lived in Scotland with her mother." The court took into account the existing factual situation. The court found that "there are grounds to determine the child's habitual residence with her mother until the court ruling is made" and made an interim order accordingly.

[15] The Petitioner appealed the decision of 26 April to Zemgale Regional Court. On 30 May 2011 Zemgale Regional Court refused the appeal.

[16] This is not a typical Hague Convention case. The Hague Convention was conceived to address a mischief arising from the breakdown of cross-border partnerships. The paradigm was one in which the father snatched the child from the mother and removed the child to his home state. Nowadays the commonest type of case is one in which the mother abducts the child to her home state - and alleges abuse by the father [E (Children), Re [2011] UKSC 27 at §§ 6-7 per Lady Hale and Lord Wilson delivering the Judgment of the Court].

[17] In the present case Latvia is the home country and - in the Hague Convention sense - the "habitual residence" of both parents and the child. The Respondent, alleged abductor, is the mother primary carer; and she is not an emotional refugee. She has migrated temporarily from her home state to another state within the European Union for economic reasons and continues to litigate in and to submit to the jurisdiction of the Latvian courts. A Latvian court has now awarded her, for the time being, "physical custody and habitual residence" in Scotland even while there is an outstanding Hague Convention request for return of the child to Latvia.

[18] Ideally this case would have been decided much more quickly: but I had to proceed with caution because the Respondent was originally unrepresented and all necessary documents and translations were not available. At the continued hearing on 14 and 15 April 2011, the first hearing before me, I noted the Respondent as telling me through an interpreter that she believed the ratification order of the Jekapbils District Court on 9 February 2010 had limited the Petitioner's parental rights and had confirmed the Respondent's exclusive right to determine the child's geographical place of residence, whether in Latvia or elsewhere.

[19] At the next continued hearing on 30 May I learned about the interim order made by Jekabpils District Court on 26 April. No translation was available. For the Respondent it was said that the order was unappealable: for the Petitioner it was said that the order had been appealed. I continued the matter to allow investigations to be made. At the continued hearing on 27 June parties informed me that the order of 26 April had been appealed and that the appeal had been refused.

[20] Going back to the hearing on 14 and 15 April, Counsel for the Petitioner, Mr Hayhow, submitted on that occasion that even if the ratification order had given the Respondent the right to bring the child to Scotland, that order had been annulled on appeal by the decision of the Zemgale Regional Court on 10 June 2010. On any view the retention of the child was wrongful.

[21] Counsel continued to the effect that the Court of Session had jurisdiction to decide the Hague Convention claim but not the underlying parental rights dispute. The Court had to have a compelling reason not to grant the return request. Hague Convention Article 13(b) provided for non-return only where there is "a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation".

[22] "Grave risk" exists when returning the child puts the child in imminent danger in the period prior to resolution of the custody dispute and adequate protection cannot be provided in the country of habitual residence [Friedrich v Friedrich 78 F. 3d (6^th Cir. 1996), 1996 FED App. 0085 (6^th Cir.); C v C (Abduction: Rights of Custody Abroad) [1989] 1 WLR 654].

[23] Counsel submitted that the Respondent could not establish grave risk. Her allegation of abuse had not been accepted by the Latvian court; and in November 2010, in connection with her claim for sole custody, the Latvian court declared itself satisfied that the Petitioner's "living conditions correspond to the needs of his daughter ..." (There are reasonably strong indications that, since the decision of 16 November 2010, the Petitioner has moved to Sweden for work).

[24] Counsel told me that the Hague Convention is premised on the proposition that the best forum for deciding upbringing issues is the court of the child's habitual residence [E (Children), Re at § 25 quoting J-P Costa President of the European Court of Human Rights; Council Regulation (EC) 2201/2003, recital (12); Povse v Alpago, [2010] EUECJ C-211/10 (1 July 2010), [2010] 2 FLR 1343, Opinion of AG Sharpston, § AG 28.].

[25] I agree that this is bound to be true in some cases and may well be true as a generality: but does it explain why the child has to be present in the home state for the decision-making? Possibly the convention is a tacit expression of the idea that jurisdiction depends on having control over the person of the child. If this is what underlies the insistence on return, then the Hague Convention is a primitive instrument as regards those jurisdictions - such as the Brussels II bis community - that are meshed together in a network of mutual recognition and enforceability.

[26] A better rationale is that ensuring the child's swift return deprives "the 'abducting parent' of any practical or legal benefit he (or she) may hope to reap from the situation" [Povse v Alpago, § AG48; Council Regulation (EC) 2201/2003, recital (17)]. There is also a public order dimension: every abduction, if unchecked by the courts, involves the possibility of a counter-abduction and a risk of escalating violence [Neulinger and Shuruk v Switzerland 41615/07 [2010] ECHR 1053 (6 July 2010), [2011] 1 FLR 122, § 134].

[27] To be fair the Hague Convention envisages a summary procedure, raised within a short time of the alleged abduction and resolved within six weeks [Council Regulation (EC) 2201/2003, Articles 10 and 11; Povse v Alpago, § AG34].

[28] The short time scale helps to explain the telescoping of the key Hague Convention concepts of "removal" and "retention". The convention applies in the case of "the wrongful removal or retention of a child", meaning, I take it, both "the wrongful removal and wrongful retention of a child" and "the removal and wrongful retention of a child". Thus I understand the Respondent's plea about "removal" not being wrongful to refer to removal and/or retention.

[29] I have to say that my initial reaction was that the return of the child in this case would be disproportionately disruptive and should not be ordered unless it was clearly the correct legal course. There were several points of difficulty.

[30] The first matter that concerned me in this case was whether the removal and retention of the child were wrongful in the Hague Convention sense of being in breach of "rights of custody". At the time when the child was removed from Latvia the Jakobpils District Court order of 9 February 2010 was in force: but beyond a general understanding that the order awarded residence to the Respondent and contact to the Petitioner I did not know the terms of the order and whether the order or the underlying agreement might have given the Respondent the right in Latvian law to have the child reside with her in the United Kingdom [cf. D (A Child) (Abduction: Rights of Custody), Re [2007] 1 AC 619].

[31] In the result the order and a translation were produced; and counsel for the Respondent who appeared on 27 June, Ms Innes, conceded that the removal of the child had been "wrongful".

[32] My second concern was whether there was a properly-evidenced Hague Convention request by the Latvian Central Authority. The Petition avers: "The central requesting authority for Latvia has applied to the UK authorities for the return of the child to Latvia in terms of the convention." The Petitioner lodged along with the Petition documents described as "Child abduction request to the Scottish Central Authority from the Latvian Central Authority together with English translation" [No 6/1 of Process].

[33] Looking at the translation, I had reservations as to whether this was a request or merely an application by the Petitioner for the request to be made. Counsel for the Petitioner assured me on 5 May that this was what a Hague Convention request looks like and that this was such a request. I accepted the assurance and have proceeded on the basis that there is a valid Hague Convention request. On this basis the request bears to have been issued by the "Ministry Justice of the Republic of Latvia". The principal is date-stamped, apparently by the Ministry of Justice, 25 January 2011.

[34] I have subsequently compared, as best I can, the "principal" with the "translation". The Petitioner's authorisation docket on the former is dated 12 January 2011 and the on latter it is dated 6 September 2010. The former at section IX "Pievienoto Dokumentu Saraksts" has a list of six documents all referring to the Petitioner, the Respondent or the child in this case: the latter at section IX "List of Documents Attached" has a list of thirteen documents including:

"5. Reference of acceptance of the child in the 1^st form of the Jekabpils Secondary school No 2.

6. Reference of acceptance of the child in the piano preparation class of the Arvids Zilinskis Jekabpils Music School.

7. [...]

8. [...]

9. [...]

10. Reference to the work place of the child's father Andrejs Marincenko.

11. Photographs of the child - Milana Marincenko

12. Photographs of the father of the child - Andrejs Marincenko

13. Photograph of the mother of the child - Olga Baikovska (previous maiden name Tanajeva)."

I have noticed one other difference between the documents. The conclusion has to be that the "English translation" is not a translation of the "Child abduction request".

[35] The Fifth Inventory of Productions for the Petitioner includes an excerpt from the "Latvian Civil Procedure Law", Part F, Division Fifteen, Chapter 77, section 644.6-644.12. The provisions in question seem to say that an application for a return request shall be made to the specified court and if granted shall then be submitted to the Ministry of Children and Family Affairs or, if the requested state is not a Hague Convention signatory, to the Ministry of Justice for further procedure. I am not clear whether the application procedure through a court is the sole competent procedure: if it is, I might have expected to find some reference in one of the Petitioner's five inventories to the making and granting of the application. The return request currently founded on bears to be a Ministry of Justice request.

[36] Notwithstanding what is written in the preceding two paragraphs, I have proceeded, without deciding the matter, simply on the assumption that there is a valid Hague Convention request for return of the child to Latvia. This is what Counsel for the Petitioner submitted; and the submission was not contested by the Respondent or by Counsel who represented her at the continued hearings of 30 May and 27 June. Counsel have not had an opportunity to address the apparent discrepancies referred to above.

[37] The third concern was one that I did raise with Counsel under reference to the case of Neulinger and Shuruk v Switzerland 41615/07 [2010] ECHR 1053 (6 July 2010); [2011] 1 FLR 122. The issue is whether a return order would conflict with the United Nations Convention on the Rights of the Child [UNCRC] Article 3(1) (best interests of the child a primary consideration) or violate the Article 8 ECHR rights (respect for family and private life) of the child or the Respondent.

[38] In Neulinger the Grand Chamber of the Strasbourg Court appeared to say that Hague Convention return orders cannot be granted automatically and that the best interests of the child must be consulted [§ 138]. The Court decided that enforcement of the return order in that case would violate the Article 8 ECHR rights of the mother and the child [§ 151].

[39] It is necessary to recall, in this context, that Article 20 of the Hague Convention is excluded from incorporation into the United Kingdom instrument, the Child Abduction and Custody Act 1985. The excluded article provides:

"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."

There must be a possibility that the United Kingdom child abduction jurisprudence was formed on the basis that ECHR Article 8 rights were not a relevant consideration. Clearly they now are a relevant consideration and the child abduction jurisprudence has to take account of them.

[40] At the time I raised the matter, the Neulinger issue had just been considered by the Court of Appeal in Eliassen & Anr v Eliassen & Anr [2011] EWCA Civ 361 (1 April 2011). Eliassen has now been decided on appeal to the Supreme Court [E (Children), Re [2011] UKSC 27 (10 June 2011)]. On 27 June Counsel for the Petitioner, Ms Coutts, submitted that the E (Children), Re decision in the Supreme Court is binding on me.

[41] I accept this. I would respectfully understand the reasoning to be that, generally speaking, if the Hague Convention is applied correctly, i.e. promptly, the best interests of children and of the individual child will be served and it is most unlikely that there will be a violation of Article 8 ECHR rights [§§ 14-18, 26, 52 per Lady Hale and Lord Wilson delivering the Judgment of the Court]. For completeness I notice that the Strasbourg Court has since applied Neulinger in Sneersone and Kampanella v Italy 14737/09 [2011] ECHR 1107 (12 July 2011); and that in Shaw v Hungary 6457/09 [2011] ECHR 1197 (26 July 2011) the Strasbourg Court found that the public authorities had violated the Hague Convention applicant's rights by failing to enforce return of the child expeditiously.

[42] The final matter of difficulty is as to the effect of the interim order of the Jekabpils District Court of 26 April 2011. Counsel for the Petitioner, Ms Coutts, submitted under reference to the decision of the European Court of Justice in Povse [above] that the Hague Convention return imperative is not defeated by the interim order because the removal of the child remains wrongful notwithstanding the terms of the order.

[43] Ms Innes for the Respondent submitted that the issue in Povse was whether an interim custody order authorising residence in another Member State was "a judgment on custody that does not entail return of the child" for the purposes of Council Regulation (EC) 2201/2003 Article 10(b)(iv). If the interim order were such a judgment it would have the effect of terminating the habitual residence of the child in the home state and transferring jurisdiction to decide parental rights to the other state.

[44] Counsel submitted that the ratio of Povse, as regards the first question referred by the Oberster Gerichtshof, Austria, is that an interim or provisional custody order does not constitute a "judgment on custody" for the purposes of Article 10(b)(iv) and does not transfer jurisdiction [Judgment of the Court, §§ 37-50].

[45] I agree with this submission. I also accept that the effect of the interim order of the Jekabpils District Court of 26 April 2011 is to authorise the residence of the child with the Respondent in Scotland for the time being. In these circumstances I cannot regard the retention of the child in Scotland as wrongful in terms of the Hague Convention and Brussels II bis; nor do I regard myself as now bound to order the return of the child.

[46] Further I think it may well be the case, as Ms Innes submitted, that to order the return of the child at this stage would be to deny recognition to the judgment of a Member State court, contrary to Council Regulation (EC) 2201/2003 Article 21. (The matter was not fully argued but my impression is, under reference to Article 23, that an interim, temporary or provisional order is a judgment for the purposes of Article 21.)

[47] I have to make it absolutely clear this Court does not purport to decide issues of parental rights in relation to the child and continues to respect the jurisdiction of the Latvian courts to decide all issues of parental rights; and I should make it clear in particular that the refusal of the Petitioner's Hague Convention return request is without prejudice to the question of recognition and enforcement of any subsequent Latvian court order for return of the child in terms of Council Regulation (EC) 2201/2003 Articles 11.8 and 40-42.

[48] I am satisfied that the decision now made is in the best interests of the child and does not violate the Article 8 ECHR rights of any of the persons concerned. A Report on the arrangements for the care of the child in Scotland dated 24 May 2011, ordered by the Court, has been transmitted to the Latvian authorities. I understand that if the child remains in Scotland for any length of time the Petitioner is prepared to exercise access rights in Scotland and will be financially better able to do so if he continues to work in Sweden.

[49] Accordingly I shall sustain the First Plea-in-Law for the Respondent and refuse the prayer of the Petition reserving all questions of expenses.