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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> NJC v NPC & Ors, Re Order Under the Child Abduction & Custody Act 1985 [2008] ScotCS CSIH_34 (10 June 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_34.html Cite as: [2008] CSIH 34, 2008 GWD 27-421, 2008 Fam LR 96, 2008 SC 571, 2008 SCLR 430, [2008] ScotCS CSIH_34

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Hodge

E F Bowen, QC

[2006] CSIH 34

P160/08

OPINION OF THE COURT

delivered by LORD OSBORNE

in the Petition of

NJC

Petitioner:

against

NPC AND OTHERS

Respondents:

For an Order under The Child Abduction & Custody Act 1985

_______

Petitioner: J J Mitchell, QC; Innes; Drummond Miller WS

First Respondent: Party

Curator ad Litem: Kelly, QC; Pagan Osborne

10 June 2008

The Background Circumstances

[1] This is a Petition brought under the Child Abduction & Custody Act 1985 at the instance of a French citizen. She was married to the first respondent on 30 December 1989. They were divorced on 28 October 2003. Together they have had four children, M, a male child now aged 17, C, a female child now aged 15, S, a male child now aged 11, and O, a female child now aged 9 years. The present Petition concerns the three children, C, S and O. The petitioner seeks an order for the return of those three children to France, where she lives. All four children at present live with their father, the first respondent, in Dundee. They are the fourth, fifth and sixth respondents.

[2] The Petition came before the Lord Ordinary for a Second Hearing on 26 February 2008 and ensuing days. At that Hearing the first respondent and the children C and S were separately represented. The child O did not enter the proceedings. At the Second Hearing evidence was presented in the form of affidavits and documentary productions. Following upon that Hearing, the Lord Ordinary, on 4 March 2008, granted the prayer of the Petition to the extent of ordering the first respondent to return the children, C, S and O, in terms of the Child Abduction & Custody Act 1985; he appointed the cause to the By Order roll of 14 March 2008 to afford parties the opportunity to consider how best the Court's order could be implemented. On 10 March 2008, the Lord Ordinary issued his Opinion setting out the reasons for his decision. On 14 March 2008, at a By Order roll Hearing, the Lord Ordinary ordered the return of those children, as ordered by the Interlocutor of 4 March 2008, to be implemented by the consent of the parties on 6 April 2008. Subsequently, the first respondent reclaimed the Lord Ordinary's Interlocutor of 4 March 2008.

[3] On 28 March 2008, a curator ad litem was appointed by this court to the three children, C, S, and O. By a Minute lodged on 21 April 2008, the curator ad litem intimated to the Court that she intended to enter the Process. Subsequently, on 9 May 2008, the curator ad litem lodged a Minute setting out the results of her investigations into the circumstances of the three children in question. She also stated that she had concluded that she did not support the first respondent's reclaiming motion.

[4] The history of the family, as ascertained by the Lord Ordinary, is described in

paragraphs [2] to [10] of his Opinion. Essentially, it is as follows. The petitioner and the first respondent were married in the United Kingdom on 30 December 1989, the boy M was born on 24 June 1990, the girl C on 17 March 1993, the boy S on 27 October 1996 and the girl O on 2 August 1998. The first two children were born while their parents lived in England. Around the end of 1994, the family left England, apparently with the intention of travelling to Colombia and Paraguay, where the first respondent intended to set up a religious community. The Lord Ordinary states that they reached Mexico, but illness and other problems brought their journey to an end. They appeared to have remained in Mexico, where the petitioner became pregnant, until sometime in 1996, when they moved to San Diego, California. The boy S was born there. They then seem to have travelled around the United States of America to some extent, returning to England in 1998, where their fourth child, the girl O, was born.

[5] About four months after the birth of this last child, the family moved to Spain, where the first respondent had apparently obtained building work. The whole family lived in Spain until September 2001, when the petitioner left, taking with her the children C, S and O. The eldest child M, then aged 11, was left in the care of his father and his paternal grandmother, who had, by then, been living with a family in Spain. The petitioner with the assistance of her own parents, went to Saint-Etienne, in South East France and obtained accommodation in a refuge there. Within a few days, the first respondent had ascertained their whereabouts and had made contact. He and the eldest child M also obtained accommodation in that vicinity. Thereafter divorce proceedings and a custody action were initiated before the French Courts, which, in the event, proved lengthy and acrimonious.

[6] On 12 February 2002 an order was pronounced by the French Family Court, providing that both parents were to exercise custody jointly, but that M was to reside with his father and the other three children were to reside with their mother. Contact arrangements were also established. On 28 October 2003, decree of divorce was pronounced, the residence arrangements for the respective children were affirmed and both parents were prohibited from removing the children from French territory without the consent of the other. The first respondent appealed against the custody decision, but only in so far as it related to the child C. On 10 January 2005, the decision of the Court at first instance was upheld by the Appellate Court in Lyon. Throughout this whole process, and thereafter, the children attended schools in

Saint-Etienne and contact, including residential contact, took place on a regular basis.

[7] The first respondent was evidently dissatisfied with the outcome of those legal proceedings. On about 3 July 2005, while exercising contact rights to the three younger children, he removed all four children from the jurisdiction of the French Courts, without the consent of the petitioner. With the assistance of his sister, he had made arrangements to fly with the children to Switzerland and then to Bangkok. He and all four children then spent the next six months travelling around various parts of South East Asia, until, around February 2006, when they found themselves in the Philippines. They remained there until December 2006, when they returned to the United Kingdom. They then made their way, more or less immediately to Dundee, a city with which they had had no previous connection, where they have lived since.

[8] The Lord Ordinary explains in his findings that, at the date of their removal from France, the children were aged 15, 12, 8 and 6 years respectively. He considered that, in the first respondent's affidavit furnished to him, there was only the most superficial explanation of his actions, as described.

[9] Following the removal of the children from France, the petitioner immediately reported them missing to the police. An inquiry was launched, which appeared to trace their flights to Bangkok. Thereafter, however, their trail was lost. Throughout the entire period of their journeying, there was no contact or communication of any nature with the petitioner. Even after they had taken up residence in Dundee, no message of any kind was sent to her, until other events intervened.

[10] Throughout the time that her children were missing, the petitioner had taken active steps to locate their whereabouts. Amongst other things, she constantly used the internet to contact schools, churches and other organisations across the world. On 17 November 2007, she came across a "blog" posted by a teenage girl attending secondary school in Dundee. This young girl had included photographs of some of her own school friends on her site. On looking through these, the petitioner found a picture of her daughter, C, by now 14 years old. Thereupon, the petitioner took immediate steps to involve the French Authorities.

[11] In parallel with the petitioner's own inquiries, other procedures had unfolded in France. Criminal charges were brought against the first respondent and his sister, based upon the fact of the removal of the children from France in breach of a court order. On 20 November 2006, the first respondent was found guilty, in his absence, of these charges and sentenced to a period of 30 months imprisonment. A warrant for his arrest was issued. His sister, who was present at these criminal proceedings, did not contest them. She was sentenced to a suspended sentence of 15 months imprisonment. That sentence was appealed by the prosecuting authorities and on 10 October 2007, the Court of Appeal of Lyon quashed that sentence and imposed a sentence of one year's imprisonment. She was not present at that Hearing and a warrant was issued for her arrest.

[12] By late October 2007, information was available to suggest that the first respondent might be living in Scotland. Enquiries with a view to his extradition were made by Interpol and the Serious Organised Crime Agency, with the result that he was arrested and appeared at Edinburgh Sheriff Court on 22 November 2007. He did not consent to his extradition and was released on bail. There have been several Hearings before the Sheriff in Edinburgh relating to the application for the extradition of the first respondent to France. On 26 March 2008 the Sheriff held that the offence stated in the European Arrest Warrant was an extradition offence for the reasons given in his Judgment of even date. The case was continued to a Notional Extradition Diet on 25 April 2008. Bail was continued. On 25 April 2008, on the joint motion of the parties, a further Notional Extradition Diet was ordered to take place on 20 May 2008. Once again bail was continued to that date. However, on 9 May 2008 at the request of the Procurator Fiscal, a further Hearing was convened before the Sheriff in the extradition proceedings. On that occasion, the Sheriff ordered the first respondent's bail to be withdrawn, having considered, among other things, a psychological report, dated 9 May 2008 prepared by Doctor Brenda Robson, a Chartered Psychologist, which report had been instructed by the curator ad litem. Since 9 May 2008, the first respondent has been in custody.

[13] The Petition came before us on 13 and 14 May 2008. At that Hearing the petitioner was represented by senior and junior counsel, the curator ad litem was represented by senior counsel, but the first respondent appeared on his own behalf, the solicitors and counsel who had previously acted for him having withdrawn from acting.

Submissions for the first respondent

[15] At the outset of his submissions, the first respondent complained, it appeared to us with some justification, that he had not had sufficient access to the papers in the case while he was in prison. It was for that reason that we departed from the original programme for the Hearing, to which we have referred, and allowed the first respondent the opportunity to consider his position overnight after the first day of the Hearing and to make further submissions on 14 May 2008. We also took steps to communicate with the prison authorities to ensure that the first respondent would be given proper access to his case papers. Nevertheless, the first respondent maintained that he had been severely handicapped in the presentation of his position. This did not accord with the requirement that there should be an equality of arms, in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. He explained that it would have been preferable that he should have had the benefit of legal representation, but that had not been possible. He made the point that, while he had had legal representation before the Lord Ordinary, he had been dissatisfied with the performance of his legal representatives; he contended that they had been professionally negligent. He submitted that that alone was a sufficient basis for interfering with the decision of the Lord Ordinary. In that connection he made reference to Anderson v H.M. Advocate 1996 S.C.C.R. 114.

[16] Turning to the Opinion of the Lord Ordinary itself, the first respondent submitted that it contained serious inaccuracies, even in that part in which the Lord Ordinary described the family background. The first respondent went on to contend that the whole basis of the petitioner's petition, the Order made in the French Courts relating to the custody of the children, was unsound. The reason for that was that, in making that Order, the French Courts had acted without jurisdiction. At the time when they had entertained litigation relating to those matters, the Spanish Courts were already seized of the same matters. In support of that contention, the first respondent relied on Council Regulation (EC) No 2201/2003 of 27 November 2003, Articles 8, 13 and 19. Under Article 8, the Spanish Courts had jurisdiction in relation to matters of parental responsibility, since the children had been habitually resident in Spain at the time when litigation was commenced there, prior to their abduction by the petitioner to France. Even if, on some basis which was uncertain, the French Courts had jurisdiction in relation to parental responsibilities, the provisions of Article 19 ought to have been operated, the French Courts should not have exercised their jurisdiction, since they were second seised of the matter. Asked by the Court whether this argument had been deployed before the Lord Ordinary, the first respondent said that it had not. That was because of the unsatisfactory professional service given to him by his then legal advisers.

[17] The first respondent went on to rely upon Article 20 of the Regulations referred to, which, he argued, would entitle the Court in Scotland to decline to order the return of the children to France upon the basis of the need for protection of them here. He explained that this point was related to the issue of "grave risk" arising from the terms of Article 13 of the Hague Convention. In this connection the first respondent drew attention to the report of Doctor Brenda Robson, already referred to. He contended that as a result of the contents of that report, the children C, S and O would be stripped of all of their rights and freedoms. Their long term rights and freedoms would be infringed if they were to be returned to France. These children were old enough to express their own opinions as to their future. If something untoward were to happen to them in France while in the care of their mother, they would have no remedy. Regardless of what might happen to the first respondent himself, the best interests of those children would not be served by their being returned to France into the custody of their mother.

[18] The first respondent went on to draw attention to the matters set forth in his Supplementary Submissions document, particularly paragraphs 3 to 14. In amplification of that, he contended that the Lord Ordinary had not paid sufficient attention to the facts of the case. Furthermore, he had not accorded the parties a fair hearing. He did not elaborate on that point. However, it could certainly be said that the first respondent himself had not had a fair hearing because of the negligence of his professional advisors who had failed to make all of the necessary submissions to the Lord Ordinary. As a result of that, the Lord Ordinary's opinion was flawed. In addition, it was apparent throughout that the petitioner's own dishonesty had had serious consequences so far as the first respondent was concerned. She had told lies on many occasions orally and in writing. In this connection he drew attention to what was said in a Supplementary Affidavit of the petitioner document 6/43, at page 334 of the Appendix. He also relied upon the contents of page 1 of the Second Supplementary Appendix, which demonstrated the point he was making. The position had been that the petitioner had been manipulative and dishonest, rather than the first respondent.

[19] Reverting to the issue of the jurisdiction of the French Courts, the first respondent stated that he had endeavoured to object to their jurisdiction, but that had not been effective. On further questioning by the Court, the first respondent stated that the petitioner had commenced the divorce proceedings, rather than he himself. In that connection he referred to pages 68 to 71 of the Appendix. However he accepted that he had sought divorce in France based upon the fault of his wife, the petitioner. She also had sought to divorce on the basis of his fault. The first respondent went on to explain that, while in France, he had not been made aware of the provisions of the Hague Convention and how it might have been used by him in Spain, in order to achieve the return of the children to that country following their abduction by the petitioner to France. In that connection, the first respondent drew attention to certain documents in the Second Supplementary Appendix, in particular a letter written by his advocate in France, Christine Cauet. The first respondent, in answering questions by the Court explained that the legal process in Spain had been in connection with two matters: (1) the abduction of the children by the petitioner to her lover's house; and (2) allegations concerning alleged abuse of the child M, in Spain. In the same connection the first respondent referred to page 110 of the Second Supplementary Appendix.

[20] At this point in the first respondent's submissions, the Court endeavoured to encourage him to address the issues dealt with by the Lord Ordinary arising out of Articles 12 and 13 of the Hague Convention. In response to that, the first respondent contended that the Lord Ordinary's opinion had been based in large measure on French Social Work Reports, which, in turn, were based upon untruths derived from the petitioner. By way of demonstration of that, he drew attention to the documents at pages 31 - 33 of the Second Supplementary Appendix. The problem for the first respondent in France had been that the French Courts had not taken account of proper material relating to the children available to them. They had not made appropriate decisions in regard to the children and could not be expected to do so. The first respondent accepted that, in Spain, there had been no divorce proceedings as such, but that was to have been discussed. In Spain, he had been seeking custody of the children, after which there had been something of reconciliation between the parties. However, proceedings relating to the children had still been pending there when the petitioner disappeared with them to France.

[21] At this point in the first respondent's submissions, the Court adjourned in ordinary course. On resumption of the Hearing on 14 May 2008 those submissions were resumed. Once again he stated that he had still not had an appropriate opportunity to prepare himself fully to present his case to a Court, on account of the fact of his incarceration. However he reverted to considering the matter of the professional negligence of his former advisers. He recognised that the case of Anderson v H.M. Advocate 1996 S.C.C.R. 114 was a decision of the Criminal Courts; there was no counterpart in a civil case. He went on to expand upon the difficulties which he faced in the presentation of his case. In Anderson v H.M. Advocate the Court had recommended the grant of legal aid to the appellant, so that the case might be properly presented. In the present case, the first respondent had endeavoured to obtain legal aid to finance his representation; however, there was extreme pressure upon him to make progress, as a result of which the Hearing had come upon him while he remained unrepresented. His incarceration, which had been engineered by a conspiracy between the curator ad litem and the petitioner had resulted in the deprivation of the first respondent's access to justice. The case involved complicated issues relating to the jurisdiction of foreign Courts which could only properly be addressed by a legally qualified person. In any event, there were still matters which ought to be further investigated as a result of the production of the psychological report by Doctor Brenda Robson. Any fresh solicitors and counsel representing the first respondent would require time to look into these matters and to prepare his defence to the Petition. There were also practical considerations which pointed in the direction of postponing the determination of the Petition. The child C was approaching the examination season at school. It was important that her education was not interrupted at this sensitive point. Doctor Robson's report was very scathing of the first respondent's character. Furthermore, she had vilified the expression of their own viewpoint by each of the children. That was very relevant to the issues which arose in connection with the application of Article 13 of the Hague Convention. The first respondent explained that the children had left France voluntarily with him, since, at that time, the situation of the family had become intolerable. There were physical, emotional, psychological and legal considerations which pointed to the appropriateness of that course. The children had been unable to express themselves because of fear of their mother. There might be the possibility of a future for the relationship between them and the petitioner, but that had not been developed. In this connection, the first respondent drew attention to Articles 7 and 10 of the Hague Convention. The petitioner had not attempted at all to bring about a peaceful and amicable resolution of the problems between the parties; by contrast, the first respondent had attempted to offer peaceful solutions. The French Consul in Scotland had approached the children in connection with these matters, but not the first respondent himself. He had asked the petitioner to come to Scotland to discuss the matter of the children's wellbeing, but she had declined to do so. Against this background it was plain that, there was a grave risk that the return of the children to France would expose them to physical or psychological harm, or otherwise place them in an intolerable situation, to use the words of Article 13 of the Hague Convention. In all these circumstances, and having particular regard to the difficulties faced by him, the first respondent at this stage asked the Court, in the interests of a fair trial to adjourn consideration of the reclaiming motion to a date to be fixed, in order to provide him with the opportunity to obtain the services of fresh solicitors and counsel and to seek his liberty, without which his case could not be properly be prepared. He asked the Court to bear in mind the provisions of Article 8 of the European Convention on Human Rights & Fundamental Freedoms.

[22] At this point in his submissions the first respondent drew our attention to Article 15 of the Council Regulation (EC No. 2201/2003), which dealt with transfer of jurisdiction to a Court better placed to hear a case. The first respondent contemplated that that power might be utilised in some way in the circumstances of this case. His suggestion appeared to be that the French proceedings should be transferred to the Scottish Courts. When pressed to explain what proceedings he had in mind for transfer, he suggested that the French custody proceedings might be transferred, albeit that they were complete. He did not see that aspect of the matter as a problem.

[23] Reverting to the psychological report by Doctor Brenda Robson, the first respondent submitted that it was of no relevance to the consideration of the merits of the Lord Ordinary's decision, since it had not been before him. One feature of the Lord Ordinary's decision which was defective was that he had assumed that the first respondent was to be extradited to France, as appeared from his observations at page 63 of the Reclaiming Print. The fact was that no such decision had been reached by the Sheriff and, furthermore, there was no certainty that such a decision would be reached, since a number of issues in relation to extradition were controversial and might be decided in favour of the first respondent. One of the problems was that the Lord Ordinary had not been addressed by the first respondent's representatives upon the defence to extradition.

[24] The first respondent went on to deal with criticisms of himself that had been advanced and which might be considered relevant. In that connection he referred to documents 14 and 15 in the First Supplementary Appendix which showed that he had conventional religious affiliations and that he was not involved in "cultist activity". It had to be recognised, however, that the Lord Ordinary had not founded upon that particular aspect. As regards the first respondent's track record, he referred to his own curriculum vitae; the fact was that he had had a good work record and had been respected in teaching and other areas of work. In the same connection he referred to the documentation in the Second Supplementary Appendix at pages 51 to 58. It demonstrated that he had engaged in steady employment in Spain. He had been engaged under a contract commencing on 22 May 2001 for an indefinite period.

[25] At this stage of the Hearing, appreciating that his allotted time was approaching its end, the first respondent emphasised that the interests of justice required that the Hearing should not be concluded, but that the adjournment which he had sought should be granted, so that he could obtain professional representation. In any event, were the Court to be against his contentions and be minded to affirm the Interlocutor of the Lord Ordinary, its operation should be suspended until the children had completed their academic years at school.

Submissions of the petitioner

[26] Senior counsel for the petitioner said that he did not intend to address all of the multifarious matters raised by the first respondent. His motion was that the first petitioner's request for an adjournment of the Hearing should be refused. He also submitted that the reclaiming motion itself was without merit and should be refused. As regards the matter of an adjournment, the first respondent had had a fair Hearing in the oral proceedings. Furthermore, he had lodged full written submissions. The interests of justice did not require that any adjournment should be granted. Further, much of the material to which the first respondent had referred in this Court could have been, but was not put before the Lord Ordinary. The proper approach which the Court should take to the matter now was to examine the Lord Ordinary's judgment in the light of what had been put before him as regards evidence and submissions. Only if the Lord Ordinary's decision was so flawed that his conclusions had to be discarded could this Court properly take account of all of the material that had been put before it. Barring that situation, which did not obtain, the matter was not at large before this Court. Coming in particular to the report of Doctor Brenda Robson, of which the first respondent had made much, senior counsel did not criticise the curator ad litem for commissioning and producing it. However, senior counsel submitted that it was not of direct relevance to the reclaiming motion.

[27] Senior counsel then proceeded to consider the merits of the reclaiming motion itself. He began by drawing attention to certain articles of the Hague Convention, which had been accorded the force of law in the United Kingdom, subject to the provisions of the Child Abduction & Custody Act 1985, by section 1(2) of that Act. Article 3 of this Convention provided that the removal or the retention of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. It was to be noted that it had been conceded before the Lord Ordinary on the part of the first respondent that his removal of the children from France had been wrongful, as appeared from paragraph [12] of the Lord Ordinary's opinion. That matter had depended on whether the children had been habitually resident in France in July 2005. They plainly had been. So the question came to be whether that removal had been in breach of rights of custody existing under French Law. In that connection Article 14 was relevant. Under it, this Court could take notice directly of the law of, and of judicial or administrative decisions recognised in the State of the habitual residence of the children. The material before the Court showed that a right of custody had existed in the petitioner at the material time, as appeared from page 72 of the Appendix. Accordingly, the concession made in relation to the wrongful removal of the children could not have been withheld.

[28] In the circumstances outlined, it was necessary to consider the terms of Articles 12 and 13 of the Hague Convention, since these Articles afforded the only basis upon which this Court could refuse to make the order sought. If the first respondent was contending that there could properly be a refusal by the Court to make an order for return, it followed that the onus lay on him to demonstrate the operation of one of the exceptions provided for in those Articles.

[29] Senior counsel went on to consider those Articles. Dealing first with Article 12, it had been dealt with in paragraphs [25] to [35] of the Lord Ordinary's Opinion. It was a matter of concession that a period of more than one year had elapsed after the date of the wrongful removal of the children from France before the commencement of the present proceedings. Accordingly the exception to the operation of Article 12 set out in the second paragraph of that Article was potentially available. It provided that the relevant authorities had to make an order for the return of a child, "unless it is demonstrated that the child is now settled in its new environment". The effect of these provisions was that, if a child was not "settled in its new environment", it was mandatory for the Court to order return under Article 12. If a child was settled, then the Court had a discretion in relation to return. That was why the Lord Ordinary had regarded himself as bound to order the return of the youngest child O, since no Article 13 argument could be advanced in relation to her, the Lord Ordinary having decided that she was not settled in her new environment.

[30] Senior counsel then turned to consider the provisions of Article 13 of the Hague Convention. It provided that, notwithstanding the provisions of Article 12, the Court was not bound to order the return of a child if one of three exceptions was established. The first could be immediately dismissed in the present context as being inapplicable. The second was that "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 third exception allowed refusal of return if the Court "finds that the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of its views." The effect of the wording of Article 13 was that, if any one of the exceptions could be established, a discretion was given to the Court as to whether to order the return or not. In the present case, before the Lord Ordinary, senior counsel had conceded that the children C and S had stated objections to being returned and that both had reached an age and level of maturity at which it would be appropriate to take account of the views expressed by each. That meant that the Court had had discretion in relation to their return. That concession was recorded by the Lord Ordinary in paragraph [12] of his Opinion.

[31] Senior counsel submitted that, in the light of the effect of Articles 12 & 13 the questions which now arose to be addressed by this Court were as follows:

(1) was the Lord Ordinary entitled to reach the view that the three children were not settled in Dundee at the date of the commencement of these proceedings;

(2) whether the Lord Ordinary was entitled to order the return of the two older children, having taken their views concerning return into account;

(3) if the Lord Ordinary was not entitled to proceed as he did, how this Court would exercise the discretion then open to it in that event.

[32] Senior counsel reminded us that the issue of "grave risk" had not been before the Lord Ordinary; no "grave risk" argument in terms of the second qualification in Article 13 had been addressed to him. On that account, there were potential difficulties concerning the consideration of such an issue before this Court. The matter was also complicated by the fact that three children were involved in this case. One outcome of the Court entertaining a "grave risk" argument might be that, in the event of an older child or children not being required to return, an issue might arise in relation to the youngest child alone in relation to "grave risk". At this point the Court put to senior counsel the question of what impact, if any, any negligence on the part of the first respondent's legal advisers, in not advancing a "grave risk" argument, might have. He submitted that that matter was not relevant. Furthermore, this Court should not entertain the introduction of fresh factual material at this stage. The issue of "grave risk" was not res noviter veniens ad notitiam, which was the only type of evidence that could properly be admitted after the closing of a proof or factual inquiry. Senior counsel relied on Hogg v Motherwell District Council (Second Division; 12 December 2001; unreported.) and Ralston v Secretary of State for Scotland 1991 S.C.336, where it was held that although, in an appeal, the Court had the responsibility to consider the interests of justice, the Court should be very slow to reopen a proof where both parties were legally represented at its conclusion and all matters ventilated had been determined. He referred particularly to what was said at pages 340 to 341. Any issue of "grave risk" would require evidence to be proffered by both parties, before it could be resolved. There was no reason why that exercise should be entered upon at this late stage. Although the first respondent had stated that he had material to show "grave risk", in the event of the children being returned to France, that would be material which the petitioner would seek to counter. There would then have to be a remit to the Lord Ordinary to consider the issue in the light of evidence presented by the parties. In a process in which expedition was required, such a procedure would not be acceptable.

[33] In any event, it was necessary for the Court to appreciate the scope of the inquiry which might ensue if the issue of "grave risk" was permitted to be ventilated at this late stage. It was evident from Article 13(b) that the existence of "grave risk" opened up for the Court the exercise of its discretion. However, that discretion involved not only considering the issue of "grave risk" itself, but also other related matters. In that connection senior counsel drew attention to the provisions of Article 11 of the Council Regulation (EC No.2201/2003). That Article dealt with the application of the Hague Convention to a situation in which the return of a child to a European Union State, not Denmark, was in issue. Hence it was potentially applicable to the present case. Sub-paragraph 4 of Article 11 was important. It provided:

"A Court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."

There was no authority bearing on that paragraph, but it was plain that it potentially opened up a wide area for inquiry. None of that had been considered by the Lord Ordinary, since the issue had not been opened up before him. In these circumstances, it would be quite wrong to do so now. In any event, there was a body of material in the Appendix which indicated that adequate arrangements could be made to secure the protection of a child after return. The Court should not give weight to the first respondent's unwarranted assertions concerning French social work arrangements. It should not be assumed that those criticisms were justified. The fact was that a "grave risk" argument had not been presented to the Lord Ordinary on behalf of the first respondent, through deliberate judgement on the part of his then legal advisers. They had had good reasons for not advancing this argument. It could not be said that their decision in that respect was negligent. If the matter had been raised by them, it would have generated a wide ranging inquiry into French arrangements. It had been judged more appropriate to rely upon the issue of settlement under Article 12 of the Hague Convention.

[34] Senior counsel then proceeded to consider the questions that had been before the Lord Ordinary. The first of these was the issue of settlement. His submission was that the Lord Ordinary had been entitled to reach the conclusion he did for the reasons that he gave. The arguments presented to the Lord Ordinary on this matter by the first respondent were narrated in paragraphs [13] to [17] of the Opinion. The submission for the children was to be found at paragraph [18] and that of the petitioner at paragraph [21]. The Lord Ordinary's decision on this part of the case appeared in paragraphs [25] to [35]. The position before this Court was that no coherent attack had been mounted by the first respondent on this part of the Lord Ordinary's judgment. It should not be disturbed. Nevertheless, it was possible to discern a line of argument implicit in what the first respondent had said. It was to the effect that the Lord Ordinary had been wrong in fact to conclude that the children had led an unsettled life prior to their arrival in Scotland. However, the Lord Ordinary's approach in that regard was not flawed in any way. Indeed, on the contrary, much of what the first respondent had said was in fact supportive of the Lord Ordinary's conclusion. The first respondent's view was hard to reconcile with the peripatetic lifestyle that he and the children had adopted between their departure from France in July 2005 and their arrival in Dundee in December 2006. At paragraph [25] and following of his Opinion, the Lord Ordinary had considered the legal principles applicable to the operation of Article 12 of the Hague Convention. He had dealt with the cases of Cannon v Cannon [2005] 1 W.L.R.32 and In Re M and Another ((Children) Abduction: Rights of Custody) [2007] 3 W.L.R.975 and In Re N (Minors) (Abduction) [1991] 1 F.L.R.413 there was nothing in the Lord Ordinary's consideration of the law to suggest that he had erred. While he had accepted that the children had related well to their educational and social environment in Dundee, that was not determinative. In paragraph [31] of his Opinion the Lord Ordinary had made a comparison between the life led by the children in the Philippines and that led by them in Dundee. He had concluded that they were evidently not settled in the Philippines. Nothing materially different had happened in Dundee. Their life there was accompanied by continuing concealment of their presence from their mother and of their status from the authorities. In addition, the first respondent was a fugitive from justice. On the whole question of settlement, senior counsel submitted that the Lord Ordinary had been entitled to hold, as he did, that the first respondent has failed to establish settlement of any of the children concerned in the sense provided for by Article 12 of the Hague Convention. There was no demonstrable error of law in the Lord Ordinary's decision. He had been entitled to reach the conclusion he did on the evidence available. He had not misdirected himself in relation to the likelihood of the first respondent's extradition to France. The first respondent had failed to show that he could avoid extradition. Finally, senior counsel drew our attention to the observations of Lord Sutherland in Souci v Souci 1995 S.C.134 at page 138. The Lord Ordinary's decision in relation to Article 12 was not in fact a discretionary decision. Discretion would have come into play only if he had concluded that the children or one or more of them were settled in Dundee. Thus his decision was a decision on a question of mixed fact and law, which could not be challenged.

[35] Senior counsel then turned to deal with the decision of the Lord Ordinary in relation to Article 13 of the Hague Convention. He had dealt with those matters in paragraph [36] and following of his opinion. The position was that the children C and S had stated objections to being returned and it was a matter of concession that both had reached an age and level of maturity at which it would be appropriate to take account of the view expressed by each. The decision of the Lord Ordinary had involved the exercise of his discretion in favour of return despite those objections. The arguments deployed before the Lord Ordinary were narrated in paragraphs [18] to [20] and [22]. The authenticity of the views expressed by the two children C and S was a primary issue. In that connection reference was made to numbers 6.29 to 6.39 of process, which recorded the views of child care professionals in France. It was contended that there had been determined attempts at manipulation. Each parent averred that the other had manipulated the children. The Lord Ordinary was well entitled to take the view that he did that there had been manipulation by the first respondent, as appeared from paragraphs [43] to [46] of his decision. It had to be borne in mind that what the Court was doing in this case was concerned with the proper application of the Hague Convention. The Court was not directly involved in identifying what might be in the children's best interests: that was a matter for the Courts of the appropriate forum. The position of the first respondent, however, appeared to be that the arrangements for the care of children in France were not reliable and that the Courts of that state could not be relied upon to make a decision in accordance with the best interests of children. It was submitted that that was not an argument that could properly be deployed. The existence of the Hague Convention and the accession to it of the United Kingdom and France demonstrated mutual confidence in their court systems. It was not proper to enter into an invidious comparison of the Courts in Scotland and France as regards their handling of cases involving children. In the Lord Ordinary's treatment of the issues arising under Article 13 of the Hague Convention, there was no error of law; nor could it be said that the Lord Ordinary had exercised his discretion in a manner that was open to criticism.

[36] Senior counsel then turned to deal with certain distinct subsidiary points. First, he submitted that the provisions of the Hague Convention were compliant in terms of the European Convention on Human Rights and Fundamental Freedoms. In that connection he referred to Ignaccola-Zenide v Romania (2001) 31 E.H.R.R.7. Accordingly section 6 of the Human Rights Act 1998 did not advance the position of the first respondent in any way. Senior counsel stressed the importance of expedition in connection with these proceedings. That was based upon the provisions, principally of Article 11, of Council Regulation (E.C. No 2201/2003). The whole approach of the first respondent conflicted with that principle. The investigation of what might be in the best interests of the children at this stage was not compatible with that principle. That was an issue for the Courts before whom the matter properly came. There was thus a need for a decision to be reached in this case at a very early stage. If an immediate decision could not be made, senior counsel stated that he had a motion to make in terms of section 5 of the Child Abduction & Custody Act 1985. It was to the effect that the children should be placed immediately in the care of the petitioner and taken to France, as an interim measure. The petitioner had no resources in Scotland, but she could take the children back to France with her. Senior counsel recognised that there might be certain difficulties attached to that course; however, there was a risk that, if the decision in this reclaiming motion went against the first respondent, illicit steps might be taken to remove the children to another jurisdiction. Currently, the paternal grandmother of the children was caring for them in Dundee. She had no connection with Dundee and had been complicit in the concealment of the whereabouts of those children from their mother. It would be unsafe for them to be left with no adult carer other than her. Section 5 of the 1985 Act provided the only power that the Court could deploy to see that the status quo was preserved until the Court's decision was available. Third, the first respondent had raised the issue of the jurisdiction of the French Courts in making the joint custody order upon which the present Petition was founded. There was no merit whatsoever in that part of his submissions. It was quite plain from the history of the matter and, in particular, legal proceedings in France that the first respondent had prorogated the jurisdiction of the French Courts. In any event, by the time that the matter came before the Court of Appeal in Lyon the children were plainly habitually resident in France. As regards the argument concerning the Court first seized of proceedings, it was submitted that there were no proceedings before the Spanish Court relating to parental responsibilities. The first respondent's French lawyer had not challenged the jurisdiction of the French Courts. This Court could not conclude that the French Court had reached a decision in an adversarial context without jurisdiction. The present proceedings did not allow for a challenge to the jurisdiction of the French Courts.

Submissions on behalf of the Curator ad Litem

[37] Senior counsel for the curator ad litem stated that she had scrutinised the Lord Ordinary's decision for any error in approach. She had taken a child-focused approach, particularly in relation to the child C, who was now 15 years old. Care had been taken to ascertain the children's views and consideration given to the issue of settlement. In the light of that consideration, the curator ad litem had reached the conclusion that the reclaiming motion could not be supported. No error on the part of the Lord Ordinary could be discerned. The curator ad litem was unable to support the views which has been expressed by the children themselves. However, the curator ad litem had not restricted herself to an examination of the Lord Ordinary's decision alone. She had considered the matter more broadly, but still had not identified anything to cause her to support the reclaiming motion. The curator ad litem had commissioned the psychological report by Doctor Brenda Robson. It did not suggest that the Lord Ordinary's decision should be challenged.

[38] Senior counsel then went on to deal with a number of miscellaneous points. First, there was little doubt that the French Courts had had jurisdiction to make the order which constituted the basis of the present Petition. At page 6E it was averred by the petitioner that the children were habitually resident in France until their removal from there by the first respondent on or about 3 July 2005. That averment had been admitted by the first respondent. Second, the first respondent had relied upon Article 15 of the Council Regulation (EC No 2201/2003) in relation to his suggestion that there ought to be a transfer of proceedings from one state to another. However, there were no proceedings in being which could be transferred. Accordingly that point was unsound. Third, senior counsel drew attention to the timetable contemplated for the handling of proceedings such as these. He referred to the provisions of Rule of Court 70.6. Any new material on which the first respondent intended to rely should have been produced long ago. His attempt to rely on material recently produced should be resisted.

[39] Senior counsel went on to explain that the curator ad litem had carefully considered the issue of settlement as at the date of the commencement of the present proceedings, 22 January 2008; and also the children's views. As regards settlement, the Lord Ordinary had looked at the issue having regard to its physical and emotional aspects. Looking at these matters as a whole, the Lord Ordinary was entitled to consider the family history from July 2005 onwards. The fact of the matter was that, since that time, the children had been fugitives and had led the existence of fugitives. Until the discovery of their whereabouts in Dundee by the petitioner, their position had been clandestine. Until November 2007 their whereabouts had been concealed from friends and family. In addition, there was considerable uncertainty regarding the future of the first respondent himself. In paragraph [45] of his Opinion the Lord Ordinary had stated that he was "likely to be extradited". Whether that was accurate or not, the fact was that extradition proceedings affecting him were in progress and he was currently in custody in connection with those proceedings. The Lord Ordinary was quite entitled to have regard to the existence of the extradition proceedings as a relevant factor in considering the issue of settlement. It would be difficult to say that the children could be settled when the parent caring for them faced such an uncertain future. While the child M might take a part in the care of the younger children, he himself intended to travel to Denmark in the near future. The paternal grandmother of the children had no connection with Dundee and herself had not settled there. Turning to deal with the implications of Article 13 of the Hague Convention, it was plain that the views of the two children C and S had to be considered. Given the age of the child C, it was appropriate that her position should be considered very carefully. While the Lord Ordinary did not seem to have considered the age and maturity of the child O, that matter had been considered by the curator ad litem and the psychologist whom she had engaged had been instructed regarding that matter. The conclusion was that she was not of an age and maturity which made it necessary that her views had to be taken into account. The curator ad litem was able to agree with the assessment made by the Lord Ordinary in paragraph [42] of his Opinion concerning the effect of the first respondent's conduct and his influence upon the children. Senior counsel went on to refer in detail to some of the relevant material. In paragraph [44] of his Opinion the Lord Ordinary had considered in detail the effect which return to France might have upon the children. He thought that there was no reason why they would not be able to integrate themselves there very quickly.

[40] Senior counsel proceeded to deal with the significance of the retention of what might be called the sibling unit. On one view of the situation, it was plain that the child O had to be returned to France. That state of affairs might create an issue itself. In the Outer House no argument appeared to have been addressed to that point, but, at that stage there was no consideration of the issue of "grave risk", for reasons that were obvious. Senior counsel said that the curator had addressed that question and did not seek to advance any case related to this aspect of the situation. However he drew our attention to certain authorities bearing upon it. These were Re HB(Abduction): Children's Objections) [1997] 1 FLR 39 and [1998] 1 FLR 422; TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515; Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192; and Re J (Abduction: Child's Objections to Return) [2004] 2 FLR 64. What emerged from these cases was that problems created by a sibling unit, if any, should be approached on the basis of the circumstances of the particular case. There was no rule of general application relating to such matters. Mention was also made of a Scottish case W v W 2004 SC 63. That case showed that the maintenance of a family unit could be a factor to be weighed in the balance when a discretion was being exercised in relation to a particular trial. The matter had been considered up to a point by the Lord Ordinary in paragraph [45] of his Opinion. His discretionary exercise in this regard could not be criticised. Reference was also made to the reports by Carol McDonald dated 15 February 2008 relating to the three children in question.

[41] As regards the matter of interim directions in terms of Article 5 of the Hague Convention, the curator ad litem had no suggestion to make.

The Decision

[42] As we have already narrated, towards the end of his submissions to us, the first respondent moved us to adjourn the Hearing of this reclaiming motion to enable him to have an opportunity of obtaining fresh legal representation. That is the first matter with which we have to deal. The first respondent was, of course, represented by solicitors and counsel before the Lord Ordinary. Thus the Lord Ordinary had the benefit of hearing submissions on his behalf which had been professionally formulated. For reasons which he explained, he was no longer thus represented. In considering this motion we have to take into account a number of factors. First, this Court is required to act expeditiously in a matter such as this having regard to the provisions of Article 11 of the Council Regulation (EC No 2201/2003) and also

Rule 70.6 of the Rules of Court. If we were to accede to the first respondent's motion, substantial delay would be likely to be occasioned. The extent of that delay would be uncertain having regard to the difficulties which the first respondent might encounter in obtaining suitable legal advice and legal aid. In any event, there is no guarantee that he would in fact be successful in finding solicitors and counsel who would be able to support the reclaiming motion. A further consideration which appears to us to be relevant is that the first respondent has already had a significant period of time in which to arrange for legal representation in connection with this reclaiming motion, but he has not succeeded in doing so. Another aspect which appears to us to be important is the extent to which the first respondent himself has been able to advance submissions and other material in support of the reclaiming motion. In that regard, as we have already narrated, he has lodged very extensive grounds of appeal and also summaries of the arguments which he wished to deploy. Furthermore, at the Hearing, we accorded to him significantly more than the time that had been originally allocated to him. In all of these circumstances, as matters stand, we consider that the first respondent has been accorded a fair hearing. It may be that the first respondent was not able to focus his submissions in the way that a professional advocate would have done, but nevertheless he has had every opportunity to address before us the issues which truly arise in connection with this reclaiming motion. In all these circumstances we are not prepared to grant his motion for an adjournment.

[43] We turn now to deal with the merits of the reclaiming motion. We consider that senior counsel for the petitioner correctly identified the issues which truly arise in connection with it. These are, first, whether the Lord Ordinary was entitled to reach the view that the three children or any one or more of them were not settled in their new environment in Dundee, within the meaning of Article 12 of the Hague Convention; and, second, in relation to Article 13 of that Convention, whether the Lord Ordinary was entitled to order the return of the two older children C and S, having regard to their expressed opposition to such a course.

[44] Turning to the first of these issues, the Lord Ordinary gave consideration to the matter of settlement in paragraphs [25] to [35] of his Opinion. In that latter paragraph he indicated that he had arrived at the conclusion that the first respondent had failed to establish settlement of any of the children concerned in the sense provided for by Article 12 of the Hague Convention. In Cannon v Cannon [2005] 1 WLR 32 it was held that, when determining whether a child was "settled in its new environment" for the purposes of Article 12 of the Convention, it was necessary to have regard to the emotional and psychological elements of settlement, as well as the physical characteristics; that concealment and subterfuge did not stop the year's time limit running and the second paragraph of Article 12 could still be invoked, but, in such cases, the burden of demonstrating the necessary elements of emotional and psychological settlement were much increased; that judges should look critically at any alleged settlement based on concealment and deceit especially if the defendant were a fugitive from criminal justice; and that, even if settlement were established, the Court retained a residual discretion to order the return of the child. It appears to us that the matters decided in that case are of some significance in the context of the present Petition. The Lord Ordinary deals with these matters in the course of his Opinion. In paragraphs [30] to [35] he considers the factors which he thought were relevant in relation to the issue of settlement. One of the matters to which he had regard was with the clandestine nature of the first respondent's residence with the children in Dundee. That is plainly a factor to which he was entitled to have regard. Furthermore, as he pointed out, the first respondent was facing extradition to France on account of the criminal proceedings which had already been taken against him in that State. While it may be that the Lord Ordinary may have taken the outcome of the extradition proceedings, to some extent, for granted, the fact is that nothing was put before him to suggest that the first respondent had a reasonable prospect of avoiding extradition, as appears from paragraphs [16] and [34] of his Opinion. Indeed a part of those proceedings has already been determined against the first respondent. We refer to the judgment of the Sheriff dated 26 March 2008.

[45] We can only agree with the assessment made by senior counsel for the petitioner of the first respondent's submissions to this Court. We consider that no coherent attack was mounted by the first respondent against the Lord Ordinary's conclusion embodied in paragraph [35] of his Opinion. During the course of his submissions to us, the respondent ranged far and wide over a series of matters some of which appeared to us to be quite irrelevant to the issues with which we had to deal. For whatever reason, he seemed to be unable or unwilling to address the two questions which arose in the light of the Lord Ordinary's decision. However, be that as it may, his task was a formidable one. The first respondent accepted that the removal of the children from France had been wrongful and that the present proceedings had been commenced more than one year after the date of that wrongful removal. Thus the issue of settlement arose in terms of Article 12 of the Convention. In Souci v Souci 1995 S.C.134 at page 139 Lord Sutherland said of the issue relating to settlement in that case:

"Having regard to the context we consider the proper question is whether the child is so settled in her new environment that the Court would be justified in disregarding an otherwise mandatory requirement to have the child returned".

Plainly, having regard to the policy of the Hague Convention, there is therefore a substantial onus on a party who contends that settlement has occurred in consequence of which that policy should not be followed. Our conclusion is that the first respondent has failed to persuade us that the Lord Ordinary erred in any way in regard to that particular aspect of the case.

[46] Turning now to the issues raised by the application of Article 13 of the Hague Convention to this case, we note that is has been throughout accepted that each of the children C and S had stated objections to being returned to France and that both had reached an age and level of maturity at which it would be appropriate to take account of the views expressed by each child. There was no acceptance and no serious suggestion was made that the child O had reached such an age and level of maturity. That was the starting point for the Lord Ordinary's considerations, as appears from paragraph [38] of his Opinion. He went on to consider the nature of the objections which had been tabled to return. He considered in detail the material before him which related to the attitudes and conduct of the petitioner and the first respondent to the children. He comments, on that basis, unfavourably upon the first respondent's conduct and his attempts to influence the children against their mother. In paragraph [43] the Lord Ordinary expressed himself as being satisfied that, taking the factors which he examined together, the first respondent had throughout exercised a degree of control and influence over each of the children such as to cause him to doubt the extent to which the objections advanced were authentically those of the children concerned. He had particular regard to the position and age of the child C and the need to bear that fully in mind in assessing the weight to be attached to the objection which she had stated. In paragraph [46] of his Opinion he came, in the end, to the conclusion that he ought not to give effect to the objections which had been stated but that he should make an order for the return of the children, as sought by the petitioner. Having considered all that was said by the first respondent, who again seemed to be unwilling to address the particular issue with which we have to deal in relation to Article 13, we have reached the conclusion that the Lord Ordinary's conclusion in this regard cannot be faulted.

[47] During the course of his submissions to us, the first respondent sought to introduce into the debate for our consideration a range of matters that were not raised before the Lord Ordinary. In particular, he first sought to rely on the provisions of sub-paragraph (b) of Article 13, which provides that if "there is a grave risk that return of the child would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation", the Court would not be bound to order the return of the child in question. It has to be said at the outset that this matter was not ventilated at all before the Lord Ordinary by those then representing the first named respondent. While it would be competent for res noviter veniens ad notitiam to be introduced before this Court in the context of a reclaiming motion, it appears to us that the matter which the first respondent sought to introduce in this regard cannot be so classified. If that is so, then it is not open to the first respondent to introduce that material now. That was the approach followed in Hogg v Motherwell District Council and Ralston v The Secretary of State for Scotland. Had this issue been raised at the appropriate stage, no doubt the Lord Ordinary would have had to consider competing evidence and contentions related to Article 13(b). He did not do so and we consider that we could not now entertain such a case. To do so would involve a wide ranging consideration, not only of the alleged effects upon the children of their return to France, but also of the French arrangements which could be made for their protection, having regard to the provisions of Article 11(4) of the Council Regulation (EC No 2201/2003). It appears to us that now to entertain such an inquiry, which would inevitably involve a remit to the Lord Ordinary to make appropriate findings in fact, would be likely to generate quite unacceptable delay. Accordingly we are not prepared to entertain the first respondent's contentions in this area. In any event, we observe, in this regard, that the material on which the first respondent relied appeared insufficient to support his view that there was a grave risk that the return of the children would expose them to harm, or otherwise place them in an intolerable situation. There was also evidence in the papers of the substantial involvement of child care professionals in the lives of the children when they lived in France. Thus the first respondent has not persuaded us that he would have had a colourable case on this ground.

[48] From time to time during the course of his submissions to us the first respondent appeared to be concerned to persuade us that it was not in the best interests of the children to be returned to France. In our opinion, that kind of contention is out of place in proceedings such as this. In Re HB (Abduction: Children's Objections) Hale J. held that, since the object of the Hague Convention was not to determine where the children's best interests lay, but to ensure that the children were returned to the country of their habitual residence for their future to be decided by the appropriate authorities there, it followed that defences under Article 13(b) carried a heavy burden of satisfying the Court that there would indeed be a grave risk of substantial harm if the children were returned. It is quite plain to us that issues relating to parental responsibility and the best interests of the children are matters appropriate for determination by the Courts of the State of habitual residence and not appropriate for consideration in proceedings such as this. In connection with his contentions in this regard, the first respondent asserted that the French Courts were incapable of making a proper determination on such matters. That is a contention which, quite plainly, we cannot entertain. The policy of the Hague Convention reflects the fact that the acceding States regard the Courts of the other acceding States as capable of making proper determinations of the kind which we have outlined. Were that not so, the whole machinery of the Convention would be unworkable.

[49] A further matter upon which the first respondent made extensive submissions to us was the jurisdiction of the French Courts to make an order of the kind which is the basis of this Petition. Of that we would say that, once again, that is not an issue which we can entertain. The first respondent was a party to proceedings before the French Courts dealing, not only with his divorce, but also with reaching a determination of the competing claims in relation to parental responsibility towards the children of his marriage. Had the first respondent had a concern that the French Courts did not have jurisdiction in relation to these matters on account of the fact that a Spanish Court had been first seized of them, that was a point which could and should have been raised before the French Courts. We are not satisfied that it ever was. Nor are we satisfied, on the information that the first respondent has provided, that the Spanish Courts were indeed first seized of the question of the custody of the children before the petitioner removed them to France. Further and in any event, the first respondent was a party to litigation in France over a substantial period of time, which included an appeal to the Appeal Court in Lyon. On any reasonable view of the situation, the first respondent must be seen as having prorogated the jurisdiction of the French Courts. In any event, the advancing of this argument by the first respondent appears to us to be inconsistent with the concession recorded by the Lord Ordinary in paragraph [12] of his Opinion, where it was recorded that it was accepted that the removal of the children from France had been wrongful. The only basis upon which such a concession could have been made was that there was a valid French Court Order which rendered the removal unlawful.

[50] Finally, the first respondent addressed us at some length in relation to the provisions of Article 15 of the Council Regulation EC No. 2201/2003, which is concerned with transfer of proceedings to a Court better placed to hear a case. The provisions of this Article operate where

"The courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: ..................

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5."

In addition, that provision may operate "upon application from a court of another Member State with which the child has a particular connection..........". The precise nature of the first respondent's contention in this regard was obscure. He appeared to us to be suggesting that the Scottish Courts might request that certain proceedings in the Courts of France might be subject of a transfer, such as contemplated by Article 15. The difficulty for him was that he was unable to identify any proceedings before the French Court which could be the subject of any such transfer. It is quite clear that such proceedings had been in dependence before the French Courts, but had been now determined with the result that a decree of divorce had been pronounced and an order made in relation to parental responsibilities vis-à-vis the children of the marriage. In those circumstances, we are unable to see how the provisions of Article 15 could be operated in the circumstances of this case now. In all of these circumstances, we have not been persuaded that the Lord Ordinary's decision is open to criticism. Accordingly we shall refuse the reclaiming motion.

[51] We have considered the question of interim measures pending the issue of this decision in terms of section 5 of the 1985 Act. We rejected immediately the suggestion that we should authorise the petitioner to remove the children to France as an interim measure. That would have amounted to a compromise of the issues raised in this case. Nevertheless we considered that it was appropriate to take some action in this connection. Accordingly we have pronounced an interlocutor requesting Dundee City Council to supervise the residence of the children at their present place of residence and, if so advised, make an application to the Sheriff relating to their protection, if they consider that appropriate in any particular circumstances.

[52] This case should now be put out in the By Order Roll at the earliest opportunity for discussion of the practical arrangements necessary to implement the Lord Ordinary's decision and to address the issue of the remuneration of the curator ad litem, a matter about which she has expressed concern.

Scottish Court of Session Decisions

Lord Osborne

Lord Hodge

E F Bowen, QC

[2006] CSIH 34