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Appeal by FPS against SM (Court of Session) [2024] CSIH 20 (26 July 2024)
URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024csih20.html
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[2024] CSIH 20
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 20
P92/24
Lord Malcolm
Lord Tyre
Lady Wise
OPINION OF THE COURT
delivered by LADY WISE
in the appeal
by
FPS
Petitioner and Reclaimer
against
SM
Respondent
Petitioner and Reclaimer: Scott KC; Family Law Matters
Respondent: Aitken; Drummond Miller LLP
26 July 2024
Introduction
[1]
This reclaiming motion (appeal) raises questions about the interplay between the
1980 Hague Convention on Child Abduction (1980 Hague Convention), incorporated into
domestic law by the Child Abduction and Custody Act 1985 and the 1996 Hague
Convention on Jurisdiction, applicable law, recognition enforcement and co-operation in
respect of parental responsibility and measures for the protection of children (1996 Hague
Convention). In particular the question arises as to the extent, if any, to which a judge
2
should apply the recognition and enforcement provisions in Articles 23-27 of the 1996
Hague Convention in the context of a 1980 Convention application for the return of children
to their state of habitual residence.
Background
[2]
FPS is Spanish. He is the father of the two boys involved in this case, who were
given the fictitious names of Charles and James by the Lord Ordinary who made the first
instance decision ([2024] CSOH 45). Charles is 13 years old and James is 8. SM, their
mother, is a British national now living in Scotland. The parties lived together in family,
initially in Scotland with Charles and then in Spain from 2013, where James was born. Their
relationship broke down and came to an end in January 2022 from which time the boys had
their primary home with their father in Spain. In May 2022 SM returned to Scotland but
continued to have contact with the children thereafter.
[3]
On 12 January 2023, the reclaimer's local court of first instance in Spain made certain
orders sought by him (No 6/53 of process). Having recorded that the mother's whereabouts
were unknown and that only the father had sought any orders, the court attributed the
exclusive exercise of parental authority to the father. No visiting (contact) arrangements
were set for the children to see their mother. In December 2023 both children travelled to
Scotland with their paternal grandmother to visit SM and her parents. They were due to
return to Spain on 19 December 2023.
[4]
While at Edinburgh Airport on 19 December with their paternal grandmother, the
boys refused to board the flight to Spain. Charles deposited his and James' passports in a
rubbish bin. The police were called to take care of the children and contacted SM who came
to collect them. Since that date the children have resided with their mother, primarily at the
3
home of their maternal grandparents. The current proceedings were raised in January 2024,
seeking orders for the return of both Charles and James to Spain. It was accepted that they
had been wrongfully retained in this jurisdiction but contended that they objected to being
returned to Spain. On 23 April 2024 the Lord Ordinary refused to order their return on the
basis that both children objected to being returned to Spain, their objections were their own
uninfluenced views and that a child-centric approach, with their interest in general welfare
at the forefront, supported a conclusion that they should not be so returned.
Applicable law
[5]
It was conceded in this case that the retention of the children in Scotland on
19 December 2023 was wrongful under Article 3 of the 1980 Convention. The focus at the
hearing before the Lord Ordinary was on Article 13 of that Convention which provides that:
"Notwithstanding the provisions of the preceding article, the judicial or
administrative authority of the Requested State is not bound to order the return of
the child if the person, institution or other body which opposes its return establishes
that:
(a)
...
(b)
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."
The judicial or administrative authority may also refuse to order the return of the child
if it finds that the child objects to being returned and has attained an age in maturity
at which it is appropriate to take account of its views.
In considering the circumstances referred to in this article, the judicial and
administrative authority shall take into account the information relating to the social
background of the child provided by the Central Authority or other competent
authority of the child's habitual residence.
4
[6]
The leading authority on Article 13 child objection cases remains that of In Re M and
paragraph 46 of that decision Baroness Hale stated:
"In child's objection cases, the range of considerations may be even wider than those
in the other exceptions. The exception itself is brought into play when only two
conditions are met: the first, that the child herself objects to being returned and
second, that she has attained an age and degree of maturity at which it is appropriate
to take account of her views. These days, and especially in the light of article 12 of
the United Nations Convention on the Rights of the Child, courts increasingly
consider it appropriate to take account of a child's views. Taking account does not
mean that those views are always determinative or even presumptively so. Once the
discretion comes into play, the court may have to consider the nature and strength of
the child's objections, the extent to which they are `authentically her own' or the
product of the influence of the abducting parent, the extent to which they coincide or
are at odds with other considerations which are relevant to her welfare, as well as the
general Convention considerations referred to earlier. The older the child, the
greater the weight that her objections are likely to carry. But that is far from saying
that the child's objections should only prevail in the most exceptional
circumstances".
[7]
The approach to child objection cases that has developed in England and Wales
applies equally in this jurisdiction. In the decision of an Extra Division decision in W v A
2020 [CSIH 55] 2021 S.L.T 62 Lord Malcolm confirmed (at paragraph 9) the two stage
approach, including the child-centric reasoning at stage two, stating;-
"In Article 13 cases the age and sufficient maturity test, once passed, is a gateway to
the court exercising a discretion, authoritatively said to be `at large', as opposed to
being directed by the Convention to return the abducted child. ... In this regard
courts are increasingly giving weight to the views of the child. A child centric
approach is required, with her interests and general welfare at the forefront. The
focus is not on the moral blameworthiness of the abducting parent, nor on notions of
deterrence. While Convention considerations will always be relevant, the further one
is from the main aim of a speedy return, the less weighty they will be. If a child is
integrated in the new community it is relevant to consider the effect of a further, and
unwanted, international relocation pending the long term decision."
On the issue of the relationship between an existing decree (in that case from a Polish Court)
and the exercise of discretion on a 1980 Convention return order Lord Malcolm expressed
the view (at paragraph 16) that :
5
"There may have been a time when disapproval of the mother's wilful defiance of
the Polish court's order would have so prejudiced her position that a return was
always going to be the likely outcome. But now the focus is on the best interests of
the child at the heart of the proceedings, not least since this is the core value running
through the Convention."
[8]
No argument under the 1996 Hague Convention was advanced before the
Lord Ordinary. The relevant articles of that Convention on which the reclaimer now relies
insofar as relevant are in the following terms:
"Article 23
(1) The measures taken by the authorities of a Contracting State shall be recognised
by operation of law in all other Contracting States.
(2) Recognition may however be refused
a) if the measure was taken by an authority whose jurisdiction was not based
on one of the grounds provided for in Chapter II;
b) if the measure was taken, except in a case of urgency, in the context of a
judicial or administrative proceeding, without the child having been
provided the opportunity to be heard, in violation of fundamental
principles of procedure of the requested State;( emphasis added)
c) on the request of any person claiming that the measure infringes his or her
parental responsibility, if such measure was taken, except in a case of
urgency, without such person having been given an opportunity to be heard;
d) if such recognition is manifestly contrary to public policy of the requested
State, taking into account the best interests of the child;
e) if the measure is incompatible with a later measure taken in the non-
Contracting State of the habitual residence of the child, where this later
measure fulfils the requirements for recognition in the requested State;
f) if the procedure provided in Article 33 has not been complied with.
...
Article 25
The authority of the requested State is bound by the findings of fact on which the
authority of the State where the measure was taken based its jurisdiction."
Article 26
(1) If measures taken in one Contracting State and enforceable there require
enforcement in another Contracting State, they shall, upon request by an interested
6
party, be declared enforceable or registered for the purpose of enforcement in that
other State according to the procedure provided in the law of the latter State.
(2) Each Contracting State shall apply to the declaration of enforceability or
registration a simple and rapid procedure.
(3) The declaration of enforceability or registration may be refused only for one of the
reasons set out in Article 23, paragraph 2.
Article 27
Without prejudice to such review as is necessary in the application of the preceding
Articles, there shall be no review of the merits of the measure taken."
The Lord Ordinary's decision
[9]
In his opinion, the Lord Ordinary explains that the sole basis of resistance to return
before him was the objection of the children. He appointed a child welfare reporter. Her
report (number 24 of process) records her discussions with Charles and James. These are set
out in some detail at paragraphs [16] and [17] of the Lord Ordinary's opinion. In essence,
both children stated an objection to returning to Spain and to their father, giving reasons for
that. The reporter explained in her report that prior to her visit she did not think that either
child appreciated that return would be "to allow a Spanish court to make decisions about
their future." She concluded, however, that both children were old enough and sufficiently
mature to object to a return. It was difficult to regard views expressed as dramatically as
theirs had been at the airport as anything other than their own uninfluenced objections to a
return. Charles had asked the reporter to convey his views using capital letters in her report
to emphasise his strength of feeling.
[10]
In submissions for FPS counsel at first instance had suggested that the children's
objections were not at a level that should give rise to the court exercising its discretion to
refuse return. He contended also that there were significant welfare concerns in what was
described as the children's "chaotic" residence in Scotland as compared with the settled and
stable life they had enjoyed in Spain. The existence of an order of the local Spanish court of
7
January 2023 was said to be particularly relevant. It was contended that the court should
respect the Spanish order and return the children. The submissions for the respondent at
first instance were to the effect that the court could be satisfied that both children objected to
a return and were old enough and mature enough for their views to be taken into account.
In the balancing exercise required thereafter, the nature and strength of the children's
objections were highlighted, in particular their actions at the airport. Further, the children
had expressed negative views of their father's behaviour, particularly his alleged drinking
and driving, leaving them unaccompanied in the house, and anger exhibited towards the
children who had they said been left frequently in the care of their paternal grandparents.
There was also information suggesting that the children were settled and happy in their new
environment in Scotland. So far as the Spanish court action was concerned counsel for the
respondent had submitted that the order appeared to have been obtained without the
respondent's knowledge and on the basis of misrepresentations made by FPS. A translation
of the Spanish court order had been lodged (number 7/3 of process). It recorded that the
whereabouts of the mother were unknown to the Spanish court whereas the evidence
suggested that the petitioner had known her whereabouts throughout the relevant period.
No confirmation of service had been produced.
[11]
In his decision and reasons, the Lord Ordinary accepted that the children had
objected to being returned and were both of an age and maturity where account should be
taken of their views. In exercising his discretion, he took into account the nature and
strength of their objections. He considered that their views were authentically their own
and that there were other considerations relevant to their welfare which required to be
balanced against the general policy of the 1980 Convention. He considered the terms of the
Spanish court order and the submission on behalf of FPS based on comity. However he
8
considered that the effect of the Extra Division in W v A did not support a return based
solely on the existence of the judgment of a foreign court, in that case Poland. The court had
stated that the existence of such an order was an important part of the background
circumstances, but not at the expense of other material considerations.
Submissions for the reclaimer
[12]
Senior counsel first addressed the policy of the 1980 Hague Convention which was to
stop parents such as SM from pre-empting a full blown examination of welfare by the court
of habitual residence. The distinguishing feature of this case was that the merits of welfare
had been determined by the Spanish court in January 2023. That court had awarded sole
custody to the father and there was no outstanding litigation. Accordingly, the
Lord Ordinary had erred in failing to recognise the effect of the 1996 Convention when
considering whether the children should be returned to the care of their father in Spain. As
a matter of general law, the rules of comity amounted to more than simply a statement of
respect for a foreign court. In Cook v Blakely 1997 SC 45 the First Division had clarified that a
court being requested to enforce a decision as to the parent with whom a child should live
should not be drawn into acting as an appellate court against the decision of the other
jurisdiction. There were two general exceptions to that, namely where a case to vary
arrangements for children was already pending in another jurisdiction or where there was
an immediate need to protect a child from harm. Counsel submitted that the respondent
mother in this case was essentially in contempt of a Spanish order and that the
Lord Ordinary had effectively endorsed that contempt.
[13]
On the issue of whether the proceedings in Spain had been properly served, the
reclaimer's position was that they had been but that the mother had not engaged with the
9
proceedings. The court had ordered re-service and ultimately edictal service had taken
place. Counsel who represented FPS at first instance had taken the view he could not
properly apply for direct recognition and enforcement under the 1996 Convention. It could
not be confirmed on the available information that one of the essential requirements, namely
that an opportunity had been given to children old enough and mature enough to express a
view to do so, had been fulfilled.
[14]
In relation to the Lord Ordinary's reliance on the decision of this court in W v A,
senior counsel pointed out that there it had been the provisions of Brussels II bis that were
under consideration. In terms of Article 11 of that Regulation, if a court in one Member State
refuses to return a child to another Member State there is an automatic reconsideration by
the court of habitual residence. So in that case, when the child was not returned to Poland
there was an automatic reconsideration in that jurisdiction, something that had been a key
factor in the court's decision. The difference in the present case, was that here the Spanish
court had reached a final decision on welfare. Although the decision had been taken in the
mother's absence, a public procurator had been involved to represent the interests of the
children. As the father in this case now had sole custody of the children in accordance with
the Spanish decree he had nothing to request of that court. The effect of the Lord Ordinary's
decision, therefore, was that the mother would simply retain the children in Scotland with
no exploration of their welfare in the court of their habitual residence. It was important to
note that there were deep divisions on the facts in this case, something that the 1980 Hague
Convention was not habile to determine. A vacuum had been left by the Lord Ordinary's
decision because those contested issues would not be explored.
[15]
Counsel's central argument related to the 1996 Hague Convention, ratified on
1 January 2011 and 1 November 2012 in Spain and the UK respectively. In terms of Article 7
10
of that Convention, the court in Spain, as the state of habitual residence of the children, will
retain jurisdiction over them until 23 December 2024, 12 months after their retention here in
Scotland. The position currently was that Scotland has no jurisdiction to make orders for
Charles and James other than protective orders to prevent them from any harm. The
measures taken by the Spanish court remain in place until modified, replaced or terminated
in terms of Article 14 of the 1996 Convention. Reference was made to Article 23 and in
particular Article 23(2) (b). It was conceded that there was a potential problem in this case
because it could not categorically be stated that the children had an opportunity to express
their views in the Spanish proceedings. Counsel told us that she had identified through
contacts in the International Association of Family Lawyers that it was not customary in
Spain to take the views of children under the age of 12. On that basis she accepted that there
was the potential for recognition to be refused. While she accepted that no petition for
recognition and enforcement under the 1996 Convention was before the court, she submitted
that the Lord Ordinary should nonetheless not have ignored the 1996 Hague Convention.
The key point, in terms of Article 27, was that there should be no review of the merits of the
measure taken by the court of habitual residence. The Lord Ordinary had created a mess
because he had condoned a situation where the mother was in contempt of the Spanish
order, an order that the father could not review as it was in his favour. The failure to have
regard to the 1996 Hague Convention even in the context of a1980 Hague Convention case
was an error. While there was no authority from England and Wales that might be of direct
assistance, in T&J (Children) (Abduction: Recognition of foreign judgment) [2006] EWHC 412 the
then President of the Family Division (Sir Mark Potter) had supported the recognition of a
Spanish court order within a 1980 Hague Convention case even where there were no
proceedings under the Brussels II bis Regulation.
11
[16]
Mrs Scott spent some time explaining the background to the order of the Spanish
court. In December 2021 SM had assaulted FPS in the family home, including with a
baseball bat to his injury. A non-custodial order, akin to a community payback order, had
been imposed with a non-harassment order. While the mother denied the offence in her
affidavit, there was ample documentation to confirm the disposal of the criminal
proceedings. While the Lord Ordinary had stated (at para [39]) that it had little bearing on
his decision it was important because it had prompted the parties' separation and the
mother leaving. SM had not been involved in the day to day care of the children between
that point and their retention in Scotland in December 2023. Turning to the order in the
Spanish proceedings, (6/53 of process), FPS's position was that, while he had taken the
children over to his own mother's caravan in Scotland and from there they had gone to
spend time with their maternal grandparents during 2022, he had not known exactly where
the respondent was living. The initial application in the Spanish court had asked for the
mother to be given non-residential contact every second weekend. However she had
departed for Scotland and the Spanish court made no order partly as a result of the domestic
abuse said to have been suffered by FPS. It had been open to the mother to appeal the
Spanish order and she had not done so. It was not entirely clear whether the order had been
notified to both parties as required by its terms. In any event no steps had been taken to
modify or vary it since it was granted. While it was accepted that the children had flown to
Scotland in March, August and December 2023, senior counsel's position was that this was
primarily for contact between them and the maternal grandparents. The mother had also
visited Spain in March/April 2023.
[17]
Senior counsel submitted that, if it was insufficient to rely on recognition under the
1996 Hague Convention such that the gateway on the Article 13 defence of objection by the
12
children to return had been opened, then the exercise of judgment of the Lord Ordinary
required to be examined. While this did involve the exercise of a discretion at large it was a
limited exercise where the court should have regard to other welfare considerations and take
a view of them on a summary basis (In Re M [2016] Fam 1). It was not an assessment of
competing evidence and could be distinguished from the situation where facts of a
jurisdictional nature require to be set up such as that involved in the case of D v D
[2002] SC 33. Substantive evidence about the welfare of the child was the preserve of the court
with primary jurisdiction, in this case Spain.
[18]
It was contended that although the children's objections were heartfelt, they were not
well founded. They had been with the respondent for only 4 weeks after a 2 year gap where
they had seen her only about three times per year. The respondent had a poor track record
of serving the welfare of her children. She had no established household and no home of
her own, nor did she have established employment. She has apparently taken the children
to reside with a partner of relatively recent standing who was disapproved of by her
parents. There was little in the affidavits to reassure the court about the arrangements for
the children were they to remain in Scotland. Conversely, there was no suggestion that
there was anything unsuitable or inadequate in terms of provision for the children in Spain.
They enjoyed a privileged lifestyle and loving family and friends there. The Lord Ordinary
had been faced with competing accounts of the parties which he could not resolve. He had
to some degree burdened the children with being the arbiters of truth, for example in
relation to their assertion of the father's drinking and driving which was denied by him and
for which there was no other evidence. The Lord Ordinary had failed to use all of the
material available to him including in particular the mother's criminal conviction and the
welfare information from the Spanish court. The absence of a finding on grave risk should
13
have been fed into the equation. Even if matters could be regarded as finely balanced the
policy of the 1980 Hague Convention should have resulted in an order for return of the
children to Spain and to the custody of their father as already determined by the Spanish
court.
Submissions for the respondent
[19]
Counsel for the respondent first addressed the position of the Spanish court order.
While the mother's position remained that the proceedings had not been served on her, the
principal basis on which this court should not accept the reclaimer's submission on
recognition was that there was no material demonstrating that the views of the children had
been sought before the Spanish order was made. In M v C, 2021 SC 324 this court
emphasised the great weight that should be given to the right of a child to be heard in
proceedings concerning them. If children were of a sufficient age and maturity to form an
express view their voices must be heard unless there are "weighty adverse welfare
considerations of sufficient gravity to supersede the default position" requiring their views
to be elicited (paragraph 12). In that case, a sheriff's failure to consider whether a five year
old child should be given an opportunity to express a view was sufficient to allow an
appeal. Accordingly, a court in Scotland would expect the children's views to be taken. In
the present case, if it could not be shown that a Spanish court had done so, there was a
fundamental reason why this court would not have recognised the Spanish order had such
an application been made at first instance.
[20]
Chapter 62 of the Rules of Court provided the necessary procedural route for seeking
recognition and enforcement of an order under the 1996 Convention. If it was accepted that
recognition using that procedure would have been refused because the requirements of
14
Article 23 of the 1996 Convention could not be met, the Lord Ordinary could hardly be said
to have erred by failing to give effect to that provision. The procedural route for recognition
and enforcement under the 1996 Convention had been available to FPS. An explanation had
now been given of why he did not proceed using that route and to date nothing had been
produced indicating that the views of the children had been sought in the Spanish
proceedings. Regardless of whether the views of the children had been taken, Article 28 of
the 1996 Convention provided that enforcement would take place "taking into consideration
the best interests of the child". Those interests inevitably included the views of the children,
something that would require to be considered in terms of Article 12 of the United Nations
Convention on the Rights of the Child. Counsel accepted that Article 28 of the 1996
Convention provided a limited safeguard only and that had the recognition and
enforcement provisions in Articles 23-27 been met in this case a different conclusion could
have been reached.
[21]
Turning to the terms of the Spanish court order itself the decision had been made on
the basis that the mother's whereabouts were unknown but in light of the list of contact
visits referred to by FPS in both 2022 and 2023 (nine in total) it was difficult to see how that
could be an accurate statement. In any event, the order of the Spanish court giving the
father the sole exercise of parental authority was made for administrative reasons, so that he
could apply for passports, deal with medical matters and so on. Notwithstanding the
statement in FPS's grounds of appeal to the contrary effect, senior counsel had now
conceded that SM has not been deprived of her parental responsibilities and rights in Spain.
That position was confirmed by FPS's Spanish lawyer (number 6/58 of process).
[22]
In relation to the question of whether the welfare issues relating to these children had
been determined, it was trite that no decision relating to children was final and that all
15
decisions such as that made by the Spanish court would be subject to later variation. The
absence of legal aid provision in Spain and the challenges of litigating in a foreign language
had to date militated against SM being able to seek to vary the Spanish order although steps
had now been taken to speak to a lawyer there. Counsel accepted that there was a need to
vary the Spanish order although as it did not fulfil the requirements for recognition in this
jurisdiction it was less easy to see an ongoing role for the Spanish court. While interesting
questions might arise about the extent to which one could oppose a recent enforceable
decision from a 1996 Convention state in the context of a 1980 Hague Convention
application, the question did not arise in this case because FPS could not satisfy the court
that the Spanish decree should be recognised. In any event, the reclaimer was wrong to
elevate that order into a final custody decision, it was simply an order reviewable on a
material change of circumstances.
[23]
The reclaimer had been wrong to contend that the Lord Ordinary had effectively
acted as a court of appeal or that he had, in conflict with Article 27 of the 1996 Convention,
reconsidered the merits of the Spanish decision. The central issue before the Lord Ordinary
was, given the clear report stating that the children had objected, whether they were of a
sufficient age and maturity that those objections required to be taken into account. Having
decided that they were, he then required to consider those objections against other balancing
factors. Quite properly, he had acknowledged the existence of the Spanish order as part of
that exercise. There was no authority to support the reclaimer's suggestion that in the
context of a 1980 Hague Convention case that the court's discretion at large would somehow
be fettered by the existence of a foreign order. Even if the decision of the Spanish court was
on the face of it capable of recognition under the 1996 Hague Convention, it required to be
given no more than respect in the context of exercising a discretion on whether or not to
16
return children under the 1980 Convention. Accordingly, the Lord Ordinary had not erred
in law in relying on the decision of this court in W v A and there was no real scope for
interference with his decision.
[24]
There was nothing in the reclaimer's argument to support a conclusion that the
Lord Ordinary had been "plainly wrong" in the exercise of his discretion. Reference had
been made in the opening narrative of his opinion (para [2]) to there having been shared
care of the children by the parties in the first few months of 2022. That narrative was not
part of his reasoning in the case. The factors he took into account were clearly narrated at
paragraphs [46] to [54] of his opinion. The reclaimer highlighted factors that he considered
were more important, but what the Lord Ordinary required to do was take all the matters
listed into consideration, which clearly he had done. Importantly in this case, the strength
and nature of the children's objections had weighed heavily with the first instance judge.
The older boy was 13 and had taken dramatic action at the airport. Both boys were
distressed at the idea of being returned to Spain against their will. While much emphasis
had been placed on their having been in their fathers care following the parties separation, it
could not be overlooked that they had been parented by both parties until the older boy was
almost 11 and the younger one 6 years of age. In the context of their lives as a whole there
had been no very lengthy period of absence from their mother, with whom they were now
settled. Their objections had been reasoned.
Analysis and decision
[25]
This is the first occasion in which this court has been asked to consider the
application of the 1996 Hague Convention in the context of a petition for a return of children
under the 1980 Hague Convention. Until fairly recently, due to the UK's membership of the
17
European Union, questions of the relationship between an order relating to children in one
EU member state and their possible return to that state were dealt with by the 1980 Hague
Convention and Council Regulation (EC) No 2201/2003 (Brussels II bis). It seems likely that
the provisions of the 1996 Hague Convention will be relied on to a greater extent now that
the Council Regulation is no longer applicable to proceedings commenced after
31 December 2020. While no mention was made of the 1996 Hague Convention to the
Lord Ordinary in this case, it is an important international instrument, ratified by the UK
and to which the court should have regard whenever relevant. The practical handbook on
the operation of the 1996 Hague Convention, published by the Hague Conference on Private
International Law, confirms that the 1980 Hague Convention and the 1996 Convention
should complement each other. They should be able to operate in tandem and not in
conflict. That said, a party such as FPS requires to make a choice about which procedural
route to take when seeking the return of children to a country that is a signatory to both
Conventions. Where there has been a recent substantive determination of relevant welfare
issues by the other state and the requirements for recognition can be satisfied, then
Articles 23 to 27 of the 1996 Convention should provide a relatively straightforward route to
recognition and enforcement.
[26]
In the present case, it was not suggested to us that the reclaimer was unaware when
the case was argued at first instance of the availability of the recognition and enforcement
provisions of the 1996 Hague Convention; Chapter 62 of the Rules of the Court of Session
provides the relevant procedural mechanism. Rather, recognition and enforcement was
apparently considered, but there was insufficient material to be able to state to the court, as
is required in such proceedings, that the children had been given the opportunity to express
their views in the Spanish court. In the context of a 1980 Hague Convention application in
18
which the central defence was that the children objected to a return, the issue becomes
whether there was a requirement to consider whether formal recognition of the Spanish
Order using the 1996 Hague Convention was possible. If it was not capable of recognition,
to what extent, if any, would such an analysis have had an impact on the outcome of the
case?
[27]
The essential complaint is that the Lord Ordinary failed to acknowledge or address
the recognition and enforcement provisions of the 1996 Convention. However, had he
enquired of Counsel for FPS why recognition and enforcement of the Spanish Order had not
been sought, he would have been informed that one of the reasons for refusal of recognition
might well apply, as there was no information to confirm that the children had been given
the opportunity during the proceedings to express a view Article 23(2)(b). In those
circumstances, the Lord Ordinary would no doubt have regarded the Spanish order in the
way that we know he did, namely by giving respect to it and taking it into account as a
factor to be balanced against other considerations in the case, including the strength of the
children's objections. In the particular circumstances of this case, the existence of the
Spanish Order was not and never could be determinative. Accordingly, the reclaimer's
argument that the Lord Ordinary should have given the Spanish Order formal recognition
under the 1996 Hague Convention rather than just general respect on the basis of comity is
without foundation.
[28]
We acknowledge that in W v A [2020] CSIH 55, the state of habitual residence
(Poland) was undertaking a merits review of custody arrangements notwithstanding the
order not to return the child there meantime. In the present case, neither side has sought to
vary the Spanish Order since the children were retained here. We accept the submission on
behalf of SM that the absence of legal aid provision in Spain and the language barrier will
19
present challenges, but we note that she has taken some steps to secure the services of a
lawyer in that jurisdiction.
[29]
More importantly, we do not accept that FPS is unable to return to the Spanish court
to seek orders that would prompt an urgent response from the respondent and/or the
children. The mother's right to exercise custody was suspended by the Spanish Court but
she retains parental responsibilities and rights over the children. If FPS has concerns about
the current care arrangements for the children he has a forum in which those can be
litigated, as the Spanish court will retain substantive jurisdiction until December 2024. Some
of the submissions made on FPS' behalf came close to an invitation to determine this case on
the basis of moral blameworthiness, a concept that no longer resonates in proceedings of this
type (W v A, at paragraph 9). In any event, court orders relating to the care of children can
never be regarded as final in the sense of being incapable of variation. There is no material
before us to suggest that the Spanish court would refuse to revisit the issue of care
arrangements for these children having regard to the material change of circumstances that
has now taken place. We reject the submission that the Lord Ordinary erred in relying on
the decision in W v A. As with any case in which a defence under Article 13 of the 1980
Hague Convention is advanced, he required to carry out a careful and balanced assessment.
He was not faced with a petition for enforcement of a foreign decree and so did not err by
failing to characterise his task in those terms.
[30]
It may be that situations will arise where the existence of a recent, fully recognisable
and enforceable court order from a 1996 Hague Convention state will be a near
determinative factor in the context of proceedings for return under the 1980 Hague
Convention, but this is not such a case. We note that in the case of T &J (Children) (Abduction:
Recognition of foreign judgment) [2006] EWHC 412, none of the grounds for non-recognition of
20
the foreign judgment applied; it was accepted that the parent seeking return was in a
position to seek recognition and enforcement (paragraphs 45 and 48). That situation is not
analogous with the circumstances of this case.
[31]
In any event, it seems to us to be unlikely that the existence of the Spanish order in
this case could ever have precluded an examination of the children's objections to a return
where the petitioner had sought to invoke the 1980 Convention. Article 28 of the 1996
Convention provides that enforcement of the foreign order will take place ".. in accordance
with the law of the requested State to the extent provided by such law, taking into
consideration the best interests of the child". While that must be read together with the
prohibition on reviewing the merits of the existing order (Article 27) it would seem to
provide at least a limited safeguard in a situation where the children's circumstances have
dramatically changed since the order was made.
[32]
Significantly, in the present case, where the central issue is the children's objection to
a return, the court requires also to have regard to the United Nations Convention on the
Rights of the Child. This case has been litigated on the eve of the coming into force of the
United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024
(2024 asp 1). That legislation incorporates the UNCRC into Scots domestic law. Article 3 of
the Convention requires that the best interests of the child shall be a primary consideration
in all actions concerning them. Article 12 requires that a child be provided the opportunity
to be heard in any judicial and administrative proceedings affecting them. Proceedings
under the 1980 Hague Convention are clearly relevant proceedings in that context. In our
view, in keeping with this jurisdiction's domestic and international obligations, the
Lord Ordinary required to consider the children's objections in this case.
21
[33]
Turning to the subsidiary argument for the reclaimer that the Lord Ordinary should
not have acceded to the objections of the children in this case, we have concluded that the
decision reached was well within the exercise of his discretion. The Lord Ordinary took into
account the circumstances in which Charles and James exhibited their initial refusal to
return to Spain and the strength of their objections as articulated to the court reporter. He
conducted the necessary balancing exercise between those factors, the policy of the 1980
Convention, the existence of the Spanish Order, the circumstances in which the children
were living and other broad welfare considerations insofar as known to him, bearing in
mind that the parties had given competing accounts.
[34]
We reject the contention that the Lord Ordinary effectively acted as an appellate
court or otherwise engaged in a review of the merits of a custody decision. The relevant
material before the court in these proceedings related to welfare considerations arising from
the recent change in the children's living arrangements, something that patently had not
been before the Spanish court. In accordance with the accepted approach in cases of this
type, the Lord Ordinary undertook a broad welfare check to satisfy himself that, should he
refuse to order the children's return to Spain, they would not be left meantime in a chaotic
situation, something that FPS had alleged. He concluded that there were on the face of it no
such concerns and fed that conclusion into the balancing exercise. That is a very different
exercise to a merits review. The assessment was carried out on an assumption that another
court would hear any dispute on future care arrangements. Had the Lord Ordinary failed to
consider wider issues of welfare at stage two of his analysis, he would have fallen into error
(Singh v Singh 1997 SC 68, at 73). The weighing of each factor for and against a return was
squarely within the exercise of his discretion and we can find no material fault in his
analysis.
22
[35]
In the absence of any obvious error in the Lord Ordinary's reasoning, there is no
basis on which to justify interference with his decision. For the reasons given, the reclaiming
motion is refused.
