Petition of SMA for orders under the Child Abduction and Custody Act 1985 (Court of Session)

Factual and Procedural Background

The Petitioner seeks an order under the Child Abduction and Custody Act 1985 for the return of his son, hereinafter referred to as the Child, to France. The Child was born in 2023 and was habitually resident in France with both parents until October 2024. The Respondent, the mother, took the Child to Scotland for a holiday with the Petitioner's permission but wrongfully retained the Child in Scotland, refusing to return to France. The Petitioner subsequently came to Scotland, found the Respondent, and was charged with offences of domestic abuse, to which he pleaded guilty to one charge and was subject to a non-harassment order. The mother alleges a grave risk of physical and psychological harm to the Child if returned to France, citing a history of domestic abuse by the father. The father denies most allegations of abuse, describing the relationship as volatile with frequent arguments.

Legal Issues Presented

1. Whether there is a grave risk, under Article 13(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, that the return of the Child to France would expose him to physical or psychological harm or place him in an intolerable situation;
2. Whether the protective measures available in France are sufficient to mitigate any such grave risk;
3. Whether the court should exercise its discretion to refuse the order for the Child's return based on the grave risk assessment.

Arguments of the Parties

Respondent's Arguments

• The Respondent alleges a history of physical, psychological, and sexual abuse by the Petitioner, supported by affidavits, audio recordings, text messages, and professional reports.
• She contends that returning to France would expose the Child to grave risk of harm due to the abusive environment.
• The Respondent fears for her and the Child’s safety and mental well-being, asserting that protective measures in France would be insufficient and delayed.
• She highlights her own mental health risks, including past suicide attempts and clinical symptoms consistent with intimate partner violence.

Petitioner's Arguments

• The Petitioner denies many of the abuse allegations or offers explanations attributing some conduct to volatile arguments.
• He admits some incidents but disputes their severity and context.
• The Petitioner asserts that protective measures are available in France, including legal aid and protection orders, and that he has complied with bail and non-harassment orders.
• He offered undertakings regarding accommodation and behavior upon the Child’s return to France, though the court found these lacking in detail and enforceability.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re E (Children) [2012] 1 AC 144	Interpretation of Article 13(b) of the Hague Convention; burden of proof; nature of 'grave risk'	Used to clarify that the risk must be grave, that the article is not to be narrowly construed, and to guide the two-stage risk assessment process.
AD v SD 2023 SLT 438	Assessment of risk to child from psychological harm and evaluation of parent's subjective perception	Applied to assess the mother's fears and the potential impact on the Child, emphasizing the focus on the child's welfare rather than the reasonableness of the parent's anxieties.
In re B (Children) [2022] 3 WLR 1315	Consideration of cumulative effect of risk factors and protective measures under Article 13(b)	Referenced to support the court's holistic evaluation of multiple risk strands and the adequacy of protective measures.
S (A Child) (Abduction: Article 13(b): Mental Health) [2023] EWCA Civ 208	Approval of cumulative risk assessment approach and evaluation of protective measures	Used to reinforce the approach to cumulative risk and protective measures assessment in the current case.

Court's Reasoning and Analysis

The court conducted a two-stage assessment under Article 13(b) of the Hague Convention. First, it considered whether, assuming the truth of the Respondent's allegations, there was a grave risk of physical or psychological harm to the Child or that he would be placed in an intolerable situation. The court found the Respondent's allegations to constitute a strong prima facie case of sustained domestic abuse, supported by corroborative evidence including audio recordings, text messages, and professional reports.

The court noted the Child's exposure to aggressive and violent conduct, including threats by the Petitioner to kill the Respondent, the Child, and himself, which posed serious risks of harm. The Respondent's mental health was assessed as vulnerable, with a significant risk of deterioration, including potential suicide attempts, which would place the Child in an intolerable situation.

Second, the court evaluated the protective measures available in France. While acknowledging the existence of legal aid, protection orders, and victim support schemes, the court found these insufficient to mitigate the immediate risks due to delays in obtaining protection upon return, lack of accommodation and income for the Respondent, and doubts about the Petitioner’s compliance with protective orders, given his history and attitudes demonstrated in communications.

The court gave limited weight to the Petitioner's undertakings, citing their lack of detail and uncertain enforceability in France. It concluded that the combination of risks and inadequate protective measures created a grave risk to the Child's physical and psychological well-being.

Holding and Implications

The court held that there is a grave risk that the Child's return to France would expose him to physical or psychological harm or place him in an intolerable situation. Accordingly, the court exercised its discretion to refuse to order the Child's return to France.

The direct effect of this decision is that the Child will remain in Scotland with the Respondent. The court did not establish any new legal precedent but applied established principles under the Hague Convention and relevant case law to the specific facts concerning domestic abuse, mental health risks, and protective measures availability.