Lord Ordinary refuses to order return of two children to Poland after petition raised by father

About this case:

• Citation:
  [2023] CSOH 58
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Stuart

Petitioner MP sought the return of his children under the Child Abduction and Custody Act 1985 on the basis that his wife, from whom he had separated, had removed the children without his consent. The older child, X, appeared as the fourth respondent and entered the process on his own instruction, expressing a view that his mental health had significantly deteriorated whilst in Poland.

The petition was heard by Lord Stuart in the Outer House of the Court of Session. McAlpine, advocate, appeared for the petitioner, Laing, advocate, for the first respondent, and Trainer, advocate, for the fourth respondent.

Identified as Scottish

Both the petitioner and first respondent were Polish nationals. In June 2013, the petitioner moved to Scotland. The first respondent and X, born in 2010, moved to reside with him in September 2013. Y, the couple’s second child, was born in Scotland in December 2015. The family returned to Poland in July 2021, after which they separated. Following separation, the petitioner exercised contact with both X and Y.

On 16 January 2023 the first respondent, along with X and Y, returned to Scotland on the understanding that they would be holidaying in Scotland for one week, returning to Poland on or around 23 January 2023. They did not return to Poland and remained residing in Scotland. It was conceded that X and Y were habitually resident in Poland on 23 January 2023 and that the petitioner had custody rights.

In his evidence, X stated that he had no real memories of Poland and identified as Scottish. He had struggled to adjust to life in Poland as he could not write in Polish and found it hard to communicate with his peers, who bullied him at school. He had always had a bad relationship with his dad, who was very controlling towards his mother and accused her of sleeping with other men for money. Prior to his return to Scotland, he had seriously considered attempting suicide due to the conduct of the petitioner and the poor quality of his school life.

It was the petitioner’s view that the children had been heavily influenced by their mother and grandmother, and that the psychologist the children had been enrolled with had been tasked with manipulating them against him. He submitted that any perceived risk to the children could be ameliorated in Poland. The first respondent had accommodation and financial means to support herself in Poland and there was no evidence that the Polish courts could not protect X and Y.

Spectre of suicide

In his decision, Lord Stuart observed: “The child welfare reporter concluded that X was able to give a ‘comprehensive rationale’ for his objection. That X has instructed his own agents and counsel – or at least that agents and counsel have satisfied themselves that they can properly accept instructions from X – is also a factor illustrative of X’s maturity.”

He continued: “As the child welfare reporter observes, assessing the extent to which children’s views are independent of parental influence is not straightforward as there will always be some degree of influence – positive or negative, express or implied, but the persistence and consistency with which and to whom X has expressed his objection strongly suggests that X’s views are his own.”

Turning to whether the grave risk defence had been established, Lord Stuart said: “The possible deterioration of X’s mental health and the spectre of suicide are self-evidently significant factors insofar as psychological harm or being placed in an intolerable situation are concerned. X’s relative difficulties with schooling, the contrast of X’s friendships and X’s identity with Scottish social and cultural life are all relevant to psychological harm.”

He went on to say: “Likewise, the factors discussed above in relation to Y’s objection to return are also relevant to grave risk. Again, on the basis of those factors alone, I consider that to return Y to Poland would result in Y being placed at grave risk of being exposed to physical or psychological harm or otherwise placed in an intolerable situation. Here, the possible separation of Y from either his mother and/or X, would clearly place him at grave risk of being placed in an intolerable situation.”

Lord Stuart concluded: “On the basis of the evidence before me I do not consider that any protective measures will be sufficient to address or ameliorate the identified risks to X and Y. It was not suggested by counsel for either the first respondent or X that there would not be available through the Polish courts measures akin to non-harassment or non-molestation orders and I proceed on that basis. No evidence was led by any party of what protective measures might actually be available in Poland.”

Accordingly, Lord Stuart refused to order the return of either X or Y to Poland.