HC/E/UKs 352
UNITED KINGDOM - SCOTLAND
Outer House of the Court of Session
First Instance
ITALY
UNITED KINGDOM - SCOTLAND
21 May 1999
Final
Issues Relating to Return | Grave Risk - Art. 13(1)(b) | Undertakings
Return ordered with undertakings offered
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The trial judge held that the meaning of the term "return forthwith" depended on the circumstances of the case. It was agreed by the parties that the original time of two days was unrealistically short and a figure of seven days was agreed instead.
The mother made various allegations against the father. She alleged that she had suffered violence at his hands on several occasions and one time the father had kicked the child. She stated that the child had started to copy his father's behaviour, although this had now stopped in Scotland.
The mother additionally alleged that the father was believed by the local Sicilian police to be involved in criminal activities and that their home had been searched on three occasions. In support she produced a report from the Italian State Police.
On these grounds she argued that a return to Italy would expose the child to physical or psychological harm. Furthermore the mother stated that the child would face an intolerable situation as she would not be able to set up home separately in Italy.
The trial judge held that the crucial issue was whether it could be shown that the Italian authorities could not deal appropriately with any of the points raised by the mother bearing upon risk of harm to which the child might be exposed. It was conceded by counsel for the mother that this could not be shown.
On this basis the judge found that the standard of harm required under Article 13(1)(b) had not been met. He further noted that in reaching this decision the undertakings offered by the father had not been essential.
The trial judge stated that the undertakings offered by the father had not been essential in his decision as to Article 13(1)(b). However, as they had been offered he would record them in the order.
(1) The father will provide accommodation for the mother and A. either in one of the two properties he owns in Sicily (one at Castiglione di Sicilia, one at Giardini Naxos) or at another reasonably priced and appointed address in Sicily of the mother's choosing;
(2) The father will pay any rent payable for the accommodation provided;
(3) The father will pay aliment for the mother and A. at the rate of 800,000 Italian Lire per month;
(4) The father will not remove A. from the mother's care (with the exception of any periods of contact with A.).
The undertakings will subsist pending any order by the Italian courts in relation to the matters with which they deal.
This case marks a rare example of undertakings being used in a Scottish case. However, it should be noted that they were not requested by the court nor were they essential for the outcome.
The position of undertakings should still therefore be regarded as being different in Scotland to neighbouring common law jurisdictions such as England and Wales and Ireland. Reference may be made to Cameron v. Cameron (No. 2), (1996) SCLR (Updates) 552 [INCADAT Reference: HC/E/UKs 77] where the Outer House of the Court of Session declined to impose undertakings.
In the English case: Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 [INCADAT Reference: HC/E/UKe 477], the Family Division of the High Court similarly rejected an argument based on Article 13(1)(b) noting that the Norwegian authorities could provide the mother protection from an allegedly violent father.
Where a removal or retention is established as being wrongful and less that 12 months have elapsed before the commencement of the return proceedings, then Article 12(1) provides that the child shall be returned forthwith. This is designed to give effect to the goal of restoring the pre-abduction situation as quickly as possibly. However questions sometimes arise as to the modalities of return and whether, if at all, time should be allowed to make preparations or to allow the child finish the school term. Practice varies on this issue.
United States of America
Sampson v. Sampson, 267 Kan. 175, 975 P.2d 1211 (Kan. App. 1999), [INCADAT cite: HC/E/USs 226].
The trial court gave the mother 90 days to submit herself and the children to the jurisdiction of the Israeli courts.
In other cases the concept of the return 'forthwith' of a wrongfully removed or retained child has been interpreted much more strictly, see:
France
Procureur de la Rèpublique c. Bartège, 27 June 1994, transcript, Montpellier Court of Appeal [INCADAT cite: HC/E/FR 63];
New Zealand
Fenton v. Morris, 28 July 1995, transcript, New Zealand District Court at Wellington [INCADAT cite: HC/E/NZ 249];
United Kingdom - Scotland
D.I. Petitioner [1999] Green's Family Law Reports 126, [INCADAT cite: HC/E/UKs 352].
The trial judge held that the meaning of the term ‘return forthwith' depended on the circumstances of the case. It was agreed by the parties that the original time of two days was unrealistically short and a figure of seven days was agreed instead.
It has equally been noted that a return forthwith may no longer be appropriate where excessive delay has occurred since the commencement of the return proceedings:
United Kingdom - England & Wales
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619, [INCADAT cite: HC/E/UKe 880] : almost 4 years had elapsed since the arrival of the child.
The English Court of Appeal has taken a very strict approach to Article 13 (1) b) and it is rare indeed for the exception to be upheld. Examples of where the standard has been reached include:
Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224, [INCADAT cite: HC/E/UKe 8];
Re M. (Abduction: Psychological Harm) [1997] 2 FLR 690, [INCADAT cite: HC/E/UKe 86];
Re M. (Abduction: Leave to Appeal) [1999] 2 FLR 550, [INCADAT cite: HC/E/UKe 263];
Re D. (Article 13B: Non-return) [2006] EWCA Civ 146, [2006] 2 FLR 305, [INCADAT cite: HC/E/UKe 818];
Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996 [INCADAT cite: HC/E/UKe 931].
Preparation of INCADAT case law analysis in progress.