Thursday, March 13, 2008

Returning Children to France

Further to my earlier post Hague Convention & Discretion is this recent Court of Session opinion on an international abduction case brought by a French mother for the return of the three younger out of four children.

During October 2003 the French Family Court affirmed the residence arrangements for the respective children with both parents being prohibited from removing the children from French territory without the consent of the other. On about 3 July 2005, the father removed all four from the jurisdiction of the French Courts and flew them to Switzerland and then on to Bangkok. They remained in South East Asia until December 2007 when they returned to Dundee.

Throughout that time the petitioner sought to establish their whereabouts and in France criminal charges were brought against the father, and his sister who had helped him. In light of the children's removal and in November 2006 he was found guilty, in his absence, and sentenced to a period of 30 months imprisonment. Subsequently the father was arrested and appeared at Edinburgh Sheriff Court on 22 November 2007 when he did not consent to his extradition and was released on bail.

It was submitted on behalf of the mother that it had not been demonstrated that the children were now settled in their new environment, in terms of article 12 of the Hague Child Abduction Convention and sought an order for the return of each child to France. The court considered (1) the meaning of the phrase "the child is now settled in its new environment" and (2) if it was proved that the children were so settled did the court nevertheless retain a residual discretion to order the child's return. The court here looked at the conduct of the father in determining if the children were settled in their new environment.

Lord Turnbull accounted for the policy of the Convention as one of a number of other factors and thought the facts of Re M were quite different from the facts of this case. As sought by their mother an order for the children's return to France was made.


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