Judge refuses to order return of child to Portugal after mother abducted girl and moved to Scotland

A judge in the Court of Session refused to grant an order under the Child Abduction and Custody Act 1985 after ruling that the child, who had been living with her Portuguese mother in Hamilton since leaving Portugal more than six years ago, had settled in Scotland within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction.

Lady Wise heard that the 39-year-old petitioner “GCMR” and the respondent, both Portuguese citizens, had a child together who was born in Portugal in September 2006.

The petitioner and respondent had litigated the issue of custody of their daughter and had been sharing her care equally by virtue of an order of their local court in September 2009.

The girl “IAR” lived in Portugal until December 2011 when she was wrongfully removed from the country of her habitual residence by her mother, and on discovering that the respondent had abducted the child the petitioner took all reasonable steps to ascertain her whereabouts.

He suspected she had gone to Brazil, a country in which she had lived for some years as a child but between January 2012 and May 2016 he was unable to locate the respondent and IAR, despite having requested information about her whereabouts from a number of countries, including the UK, until they were eventually found to be living at an address in Hamilton.

It was not dispute that the petitioner had rights of custody in respect of IAR in terms of Article 3 of the Hague Convention, incorporated into domestic law as Schedule 1 to the Child Abduction and Custody Act 1985.

Nor was it disputed that IAR was at the time of her abduction habitually resident in Portugal and the respondent conceded that she was wrongfully removed from the country of her habitual residence in a “clandestine manner”.

In these circumstances the petitioner lodged a petition in November 2016 seeking an order for the return of IAR to Portugal in terms of the 1985 Act.

But given that almost five years had passed between the wrongful removal and the raising of the petition for return the respondent relied on the terms of Article 12 of the Hague Convention, which provides an exception to the requirement to order the return of a child removed from his or her habitual resident forthwith if it is demonstrated that that child is now settled in his or her new environment.

The respondent relies also on the provisions of Article 13 of the Convention. First, under Article 13b it was contended that there was a “grave risk” that the return of the child would expose her to “physical or psychological harm” or otherwise place her in an intolerable situation, and secondly and separately that the child IAR “objected” to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views.

For the respondent it was submitted that on the facts of this case there was ample evidence for a finding that the child IAR is settled in Scotland in terms of Article 12 and that the consequent discretion not to return her should be exercised so that no order for her return to Portugal should be made.

She had not lived a clandestine, nomadic and transient life with IAR, but had lived openly in Hamilton for five years – a longer period than in any of the reported decisions.

An affidavit from EF, the head mistress of IAR’s primary school, noted that the child had expressed “positive aspirations” about her life in Scotland.

Further, a report from a child psychologist said she had many friends and had developed a number of hobbies and interests in Scotland, including swimming and playing football, adding that she was clear in telling the psychologist that “this is my home.”

The court was also told that the child was happy in the care of her mother, with no sense of loss or sadness at the absence of any contact with her father, and that she had said that she will run away if returned to Portugal against her will.

However, counsel for the petitioner argued that at the stage of exercising discretion, the court required to weigh in the balance the importance of the convention and the need to establish that those who abduct children from their parents, causing anguish and distress to the parent and family left behind, should not be allowed to benefit from their wrongdoing.

The respondent also claimed that the petitioner was a “violent and aggressive man” who was abusive to her both during their relationship and after it terminated and there was evidence of corporal punishment being inflicted on the child by the petitioner.

But the petitioner submitted that on the basis of the objectively obtained material there was no suggestion that the petitioner had anything other than a close, loving and supportive relationship with his daughter, adding that he had been awarded joint custody of IAR by the Portuguese court.

The judge observed that this was a “paradigm case” of the type of abduction the Convention was designed to address, but added that the passage of time since the respondent wrongly removed IAR from her home country was “so significant that different considerations additional to the aim of a prompt return to the county of habitual residence require to be addressed”.

She decided to exercise her discretion in favour of refusing to grant an order for IAR’s return to Portugal.

In a written opinion, Lady Wise said: “I conclude that to require this ten year old girl to leave her home of several years and return to what she now feels is a foreign country, when the prospect of that makes her feel sad, upset and angry would be contrary to her best interests. IAR’s strongly held views, coupled with the length of time she has been settled here, lead to those interests prevailing when balanced against the primary purpose of the Convention.”