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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> T, Re Order under the Child Abduction and Custody Act 1985 [2007] ScotCS CSOH_43 (27 February 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_43.html Cite as: [2007] ScotCS CSOH_43, [2007] CSOH 43 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 43 |
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P2862/06 |
OPINION OF LADY PATON in the petition of T Petitioner; for An Order under the Child Abduction and Custody Act 1985 ________________ |
Petitioner: Burr, Advocate;
Respondent: Wylie, Advocate; J.K. Cameron;
Digby Brown
[1] The
parties are Polish. They were married
and divorced in
[2] The
divorce decree granted by the Polish court as translated was in the following
terms:
"2. Rules that the respondent [the mother] shall
exercise the parental authority over the minor children: K born on March 28 1993 and M born on June 1
1999 and the petitioner's [the father's] parental authority shall be limited to
co-decision-making in choosing school and profession and choosing the method of
treatment in case of serious illness and that the respondent shall inform the
[petitioner] of the minor children at the petitioner's demand and give him
periodic information and shall give ready ear to the petitioner's remarks ...
4. Determines the access of the petitioner [the
father] to minor children K and M on Wednesday and Saturday each week from 4 p.m.
to 7 p.m. and every second week from Friday 4 p.m. to Sunday 7 p.m.; the petitioner is entitled to take the minor
children outside their place of residence ..."
[3] In
2006, the respondent came to
[4] The
children's father (the petitioner) continued to live in
"Article 3
The removal or the retention
of a child is to be considered wrongful where -
a) it is 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; and
b) at the time of removal or
retention those rights were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or retention.
The rights of custody
mentioned in sub-paragraph a) above, may arise in particular by operation of
law or by reason of a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State ...
Article 5
For the purposes of this
Convention -
a) "rights of custody" shall
include rights relating to the care of the person of the child and, in
particular, the right to determine the child's place of residence;
b) "rights of access" shall
include the right to take a child for a limited period of time to a place other
than the child's habitual residence."
[5] After
sundry procedure, a debate on the question of rights of custody took place
before me at a continued first hearing on
Submissions
on behalf of the petitioner
[6] Counsel
for the petitioner stated that there was no dispute that the children's
habitual residence was in
"Article 93. 1. Parental authority shall be vested in both
parents ...
Article 97. 1. If parental authority has been vested in both
parents, each of them has the obligation and the right to exercise it.
2. However, important matters concerning the
child shall be decided upon by the parents jointly; in the case there is no agreement between them,
the decision shall be made by the guardianship court."
There had been no derogation or suspension of the petitioner's
rights under Articles 110, 111, or 112 of the Code. The opinion of a Polish lawyer Henryk Szulc,
dated
[7] The
ability to co-decide as to choice of school was of particular significance, and
indicated that the petitioner had rights of custody, as his parental authority
extended to such a vital issue. Thus,
quite apart from the Polish lawyer's opinion, it could be seen from the power
relating to the choice of school that the petitioner had rights of
custody. Even if there was a limitation
on the pursuer's parental authority, he still retained the right to make a
decision as to school.
[8] Counsel
invited the court to prefer the opinion of Mr Szulc to that of Magdalena
Guzewicz, a Polish lawyer instructed on behalf of the respondent. However even on the basis of the latter's
opinion, the right to choose a school meant that the petitioner had rights of
custody.
[9] The
term "rights of custody" should be construed in its widest sense: In re B (A Minor) (Abduction) [1995] 2
F.C.R. 505, Waite L.J. at page 517E to 518;
C v C (Minors) (Child
Abduction) [1992] 1 F.L.R. 163, at page 170E. Moreover it was of importance that the
petitioner's consent had been required for the children's passports. The clear implication was that the petitioner
had a right to decide the children's place of residence in terms of country.
Submissions on behalf of the respondent
[10] Counsel
for the respondent contended that the petitioner did not have rights of custody
which would bring him under the Convention.
There had therefore been no wrongful removal of the children from
[11] The
question at issue was the limitation of the petitioner's rights in terms of the
divorce decree. The court was faced with
conflicting opinions from two Polish lawyers.
It was always open to the court to seek a declarator from a Polish
court. Counsel submitted that the
Scottish court should prefer the opinion of Miss Guzewicz dated
[12] It was
true that the divorce decree gave the petitioner a right of co-decision-making
as to choice of school, profession, and treatment in the case of serious
illness. Nevertheless counsel submitted
that the petitioner did not have the right to decide the children's place of
residence. He had a right to be informed
about their place of residence, and perhaps consulted about it: but he had no right to decide on their place
of residence. Counsel accepted that the
phrase "rights of custody" in Article 5 of the Convention should be construed
in its widest sense. But in some
countries, rights of custody were more restricted than in the United Kingdom,
and those restrictions had to be respected:
cf. Hale L.J. at paragraph 24, 26, 39, 42, and 43 of In re D (A
Child) (Abduction: Rights of Custody) [2006] 3 WLR 989.
[13] The
apparent requirement by the authorities in
[14] It was
noteworthy that Poland had no provision equivalent to section 2(3) of the
Children (Scotland) Act 1995, which had the effect that a parent who had a
right of contact could veto the child being taken abroad: cf. AJ v FJ, 2005 S.C. 428;
and dicta of Lord Hope at paragraph [8] of In re D
(Abduction: Rights of Custody) [2006] 3 WLR 989.
[16] Counsel
accordingly contended that the co-decision-making powers about school,
profession, and medical treatment were not enough to bridge the gap between
what the petitioner had, and a "right of custody" in the Convention sense. There had to be something specific to the
place of residence or the country of residence, whether by reason of a veto or
a requirement for consent. The principle
of the Convention was set out in the preamble, and Article 19 echoed the
importance of residence. In the present
case, the father did not have any rights relating to place of residence. The father had the choice of school, but
nothing in relation to residence. He
could make decisions about the child's school, profession and medical
treatment, regardless of which country the child was in. There was therefore no need for the courts of
the home state to take decisions in relation to the child, because it was
implicit in the divorce decree that the petitioner had no co-decision-making
right about the child's residence.
Counsel submitted that if the mother wanted a school in
[17] As
stated, counsel had found no authorities precisely in point. Seroka v Bellah, 1995 S.L.T. 204 was cited for information
only. The opinion of Miss Guzewicz
should be preferred to that of Mr Szulc.
[18] In
terms of Articles 3 and 5 of the Convention on the Civil Aspects of
International Child Abduction (the Hague Convention), the phrase "rights of
custody" includes rights relating to the care of the person of the child, and
in particular, the right to determine the child's place of residence. As Hale L.J. observed in In re D
(Abduction: Rights of Custody) [2006] 3 WLR 989, at paragraph [26]:
"... The question is, do the rights possessed under
the law of the home country by the parent who does not have the day to day care
of the child amount to rights of custody or do they not? States' laws differ widely in how they look
upon parental rights. They may regard
the whole bundle of rights and responsibilities which the law attributes to
parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the
package of rights which that entails, and the other having the access slice,
with the different package of rights which that entails. This is by no means an unusual way of looking
at the matter. Alternatively, the state
may regard the whole bundle of parental right and responsibilities as inhering,
and continuing to inhere, in both parents save to the extent that they are
removed or qualified by the necessary effect of a court order or an enforceable
agreement between them ..."
[20] It
seems to me that the right of co-decision-making in choosing school and
profession and choosing the method of treatment in case of serious illness by
definition amounts to "rights relating to the care of the person of the child",
and, in certain circumstances, to at least a share in the "right to determine
the child's place of residence": cf.
Miss Guzewicz's opinion dated 23 January 2007, Answer 1, third paragraph; and Answer 4.
The rights given are the rights to co-decide on those matters, not
simply the right to be readily listened to (granted in relation to other
matters). Choice of treatment in the
case of serious illness will not necessarily, in my view, arise only during
access when the petitioner is in the position of negotiorum gestor. A child may develop a protracted serious
illness or condition for which specialised treatment is available only in
certain cities or countries. In relation
to school or profession, it is in my view unrealistic to assert that
co-decision-making-powers relating to choice of school or profession cannot or
should not affect the child's place of residence. To adopt such a construction would relegate
the alleged co-decision-making power to the status of the right to be readily
listened to: but the divorce decree
specifically distinguishes that type of right from the co-decision-making
right. The opinion of Mr Szulc supports
such an approach to the construction of the decree, and Miss Guzewicz's opinion
does not detract from it.
[21] In my
opinion therefore the Polish divorce decree, properly construed against the
background of the Polish Family and Guardianship Code and the opinions of
Polish lawyers, gives the petitioner rights of custody in terms of Articles 3
and 5 of the Convention on the Civil Aspects of International Child
Abduction. Such a result is also in
accordance with authoritative guidance that the term "rights of custody" should
be construed in its widest sense: In
re B (A Minor) [1995] 1 F.C.R. 505 and C v C (Minors) (Child Abduction) [1992] 1 F.L.R. 163.
[22] In the
result, I find it unnecessary to form any concluded view about the implications
of the procedure adopted in relation to the children's passports.
[23] It is
my opinion therefore that the Polish decree of divorce, properly construed,
confers rights of custody upon the petitioner within the terms of the Hague Convention. That being so, I understand that the
respondent now has further arguments to present, relating to intolerable
situation, consent, and the views of the child K. A further continued first hearing will now be
arranged to enable those matters and any other relevant matters to be
discussed.