Judge orders return of child to Sweden after mother abducted girl and moved to Scotland

A judge in the Court of Session granted the order under the Child Abduction and Custody Act 1985 after ruling that the Swedish courts were “best placed” to determine what was best for the child, despite her objections to being returned.

Lord Mulholland heard that the petitioner “YG” and the respondent “EEP” were in a relationship and living together in Sweden when they had a child, who was born on 1 May 2009.

The couple separated in about August or September 2015 and the respondent returned to Scotland, but the child stayed with the petitioner in Sweden.

The respondent returned to Sweden in January 2016 and the child then resided with her mother in an apartment, but for the next six months the father had weekend and holiday contact with the child, as agreed between the parties.

However, on 7 June 2016 the respondent returned to Scotland with the child, unbeknown to the petitioner.

In terms of the laws of Sweden on said date the parties had joint custody of the child, but the petitioner made an application on 17 June 2016 for sole custody and the Södertälje District Court in Sweden granted the order in September 2016.

Thereafter a detention order was issued for the respondent in her absence, on the basis that there was “probable cause” to suspect that she had committed the offence of “unlawful abduction of a child” and in October the Swedish prosecutor issued a European Arrest Warrant (EAW) for her arrest and extradition.

But the application by the Swedish authorities was refused by Edinburgh Sheriff Court on 19 January 2017 on the basis that the requirement of dual criminality was not met as the offence set out in the EAW was not an offence in Scots law.

The initial removal of the child from Sweden was not a breach of a court order as there was no court order in place at the time the child was removed from Sweden and accordingly, no offence was committed in Scots law.

The petitioner commenced the current proceedings on 23 February 2017 when the petition was lodged.

The court appointed an advocate as a child welfare reporter, who interviewed the child at her school and prepared a report dated 23 March 2017, which informed that the child did not want to speak with the reporter or offer comments or views about living in Scotland or returning to Sweden.

The respondent then lodged a report from a chartered clinical psychologist dated 30 March 2017 based on an interview with the child the day before, which confirmed that the child did not wish to be removed from her maternal family and returned to Sweden to be with the petitioner, that such a return would have a “negative impact” on her psychological well-being and developmental functioning.

In terms of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction an order should be made for the return of the child to Sweden unless the requirements of Article 13 are met and the court considers that it is appropriate to exercise its discretion not to order the child’s return.

The requirements of Article 13 is that there is a grave risk that a child’s return would expose her to physical or psychological harm or place her in an intolerable situation, or where a child has attained an age and degree of maturity at which it is appropriate to take account of the child’s views and the child objects to being returned.

During a court hearing on 3 and 4 April 2017 when submissions were presented by counsel on behalf of both parties, it was submitted that the petitioner acted promptly in raising proceedings before the Swedish courts for custody of his daughter – within 10 days of the child’s abduction to Scotland.

The petitioner was aware of the custody proceedings in Sweden and could have taken steps to seek a variation of the Swedish court order, but did not do so, meaning this was a “deliberate and planned abduction” in the knowledge of a joint custody arrangement where the petitioner had acted promptly to assert his rights.

It was argued that child welfare issues outwith the strict limitations of Article 13b of the Hague Convention required to be dealt with in the state of habitual residence, in this case Sweden, and the even if it could be established that the requirements of Article 13b were met in this case, the court must take into account the “policy considerations underlying the convention”.

The respondent accepted that the child was “unlawfully removed” from Sweden, but the child had been in Scotland for 10 months – a long time in the her young life, it was said – and the court could take account of this in determining whether or not to exercise its discretion in terms of Article 13.

Regard should be had to the “best interests” of the child and the psychologist’s report demonstrated that there would be a “grave risk” of psychological harm if the child was returned to Sweden, that she would be placed in an intolerable situation, and that she was mature enough to express her “strongly held” objections.

It was argued that Article 13b should be applied restrictively but not so restrictively that an order for the return of a child would never be made.

However, the judge decided to exercise his discretion by granting the order sought for the return of the girl to Sweden.

In a written opinion, Lord Mulholland said: “Notwithstanding that the child objects to a return to Sweden, I am of the view that a return to Sweden is justified in all the circumstances. Weighing up the child’s objection with all the other factors in the case, I am of the view that it is appropriate to order the child’s return to Sweden. These factors are that the Swedish Courts are best placed to determine what is best for the child, the need to respect the judicial processes of Sweden, a recognition of the options available to the Swedish courts, including the option of relocation, the expedition by the petitioner in seeking interim custody and an order under the Hague Convention for the return of the child, the fact that Sweden is a signatory to the United Nations Convention on the Rights of the Child which requires States to put the best interests of the child as a primary consideration, the need to deter child abduction, the measures which will be taken in preparation for the child’s return to Sweden and upon her return to Sweden to moderate the effects of the return, the fact that the child has spent a large proportion of her life in Sweden during which time she lived with the petitioner (in family with the respondent) and the fact that she lived in Sweden with the petitioner, and his paternal family, for four months whilst the respondent was living in Scotland. In my opinion these factors outweigh the child’s objection and the integration of the child in this country (having spent ten months here).”