Father’s petition to have daughter returned to Poland refused by Inner House



Lord Malcolm
Lord Malcolm

A Polish national who sought a return order under the Child Abduction and Custody Act 1985 in respect of his daughter, who had been taken to Scotland in 2019, has had his petition refused following an appeal by the child’s mother. 

The petitioner, W, and the first respondent, A, had lived together in Poland until the child was seven. The sole defence presented to the petition was that the child, now aged 10, had objected to a return to Poland. 

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Woolman, and Lord Pentland

Refused court permission 

Following the couple’s separation, the petitioner had contact with his daughter until June 2019, at which time her mother brought her to Scotland. Prior to moving to Scotland, a Polish court had refused the mother’s application for permission to take the child to Scotland on the grounds that it provided no benefit to her and would destroy her relationship with her father. 

Upon arriving in Scotland the mother resumed cohabitation with a Polish man whom she had married in Poland and had previously moved to Scotland. This man had previously lived with the child for only about three or four months. 

The Lord Ordinary who heard the petition at first instance granted the petition, stating that the child’s objections had to be considered against this background, and that it was clear she had no appreciation of the nature of and reasons for the Polish court’s decision. Her express views were “highly subjective”, expressed in childish and immature language, and failed to take into account material considerations in relation to her wellbeing and best interests. 

The respondent submitted that the Lord Ordinary’s exercise of his discretion was flawed, and he did not pay regard to the general welfare of the child. Rather than having proper regard to the child’s objections, the Lord Ordinary sought to minimise them for reasons which do not withstand scrutiny. 

In response, the petitioner submitted that the Polish courts had considered the mother to be untrustworthy, and had previously breached a court order by delaying her return from Scotland. It was suspected that she wanted to move to Scotland to be with her husband who was hiding from Polish authorities after failing to return to prison after a break from a sentence. 

Child-centric approach 

The opinion of the court was delivered by Lord Malcolm. Outlining the role of the court in this case. He said: “The long term decision on residence remains with the Polish Court. It must be informed of any non-return order and its reasons, and its judgment in resolution of the parental dispute will be directly enforceable in Scotland. This is a key factor. The question is whether in the meantime the child shouldbe returned to Poland pending that decision.” 

He continued: “In this regard courts are increasingly giving weight to the views of the child. A child-centric approach is required, with her interests and general welfare at the forefront. The focus is not on the moral blameworthiness of the abducting parent, nor on notions of deterrence.” 

Evaluating the decision of the Lord Ordinary, he said: “In Re M (2008) Lady Hale referred to the ‘wider considerations of the child’s rights and welfare’, and it is evident that these must be assessed as matters stand at the date of the court’s decision. By contrast, the Lord Ordinary makes no reference to this, nor as to the implications of the child having been living, apparently happily and well-cared for, in Scotland for over a year, this being a lengthy period for a 10 year old. There is no indication that the potential for harm arising from a further disruption has been addressed.” 

He continued: “One would expect the judge to engage with the stated reasons for the child’s concerns, with due weight afforded to them, all as part of the ‘child-centric approach suggested by Lady Hale. There is no sense that such an approach was adopted. The Lord Ordinary’s discussion focussed only on factors thought to minimise their significance.” 

On the views expressed by the child, he said: “Though not determinative, the court places considerable weight on the child’s views. It has no particular comments on the way in which they are expressed, nor as to her lack of understanding of certain matters. The evidence establishes that her current circumstances are more than satisfactory in terms of her education, home environment, and general welfare and wellbeing.”  

He continued: “She has lived in Scotland for well over a year and has integrated well into her new community. A return to Poland pending a long term decision on her future would disrupt all of this for no obvious benefit, and in all probability she would again be in cramped and over-crowded living conditions.” 

Of the mother’s defiance of the Polish court order, he stated: “There may have been a time when disapproval of the mother’s wilful defiance of the Polish court’s order would have so prejudiced her position that a return was always going to be the likely outcome. But now the focus is on the best interests of the child at the heart of the proceedings, not least since this is the core value running through the [Hague] Convention. The above considerations have persuaded this court that, pending resolution of the parental dispute, she should remain in Scotland.” 

For these reasons the appeal was allowed and the return order was quashed, with a non-return order made authorising the child to remain in Scotland. 

© Scottish Legal News Ltd 2020



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