Court of Session (Inner House, Extra Division), Scotland

Court of Session (Inner House, Extra Division), Scotland

United Kingdom - Scotland

26 July 2024

FPS v SM

[2024] CSIH 20

Appellate Court

• Article 23(2)(b)
• Article 27

• Article 7
• Article 14
• Article 23
• Article 25
• Article 26
• Article 28

Child Abduction and Custody Act 1985, Rules of the Court of Session

First instance decision: FPS v SM [2024] CSOH 45 (Outer House, Court of Session, Scotland), available at https://www.bailii.org/scot/cases/ScotCS/2024/2024_CSOH_45.html.

Two children habitually resident in Spain travelled to Scotland for a visit with their mother and refused to return to Spain. Their father sought their return under the 1980 Hague Convention. The Lord Ordinary refused the return application after finding that both children objected to returning to Spain and were of sufficient age and maturity for their views to be taken into account. On appeal, the father argued that insufficient weight had been given to an existing Spanish court order granting him sole exercise of parental authority and that the Scottish court had failed properly to consider the recognition and enforcement regime contained in Articles 23–27 of the 1996 Hague Convention. The Inner House rejected those arguments. It held that no recognition application had been made under the 1996 Convention and that, in any event, recognition might have been refused under Article 23(2)(b) because there was no evidence that the children had been afforded an opportunity to be heard in the Spanish proceedings. The court concluded that the first-instance judge had correctly treated the Spanish order as part of the overall balancing exercise under Article 13 and had not impermissibly reviewed its merits. The appeal was therefore refused.

The appeal was dismissed. The Inner House upheld the first-instance decision refusing to order the return of the children to Spain under Article 13 of the 1980 Hague Convention on the basis of the children's objections. The court rejected the father's argument that the Scottish court should have given determinative weight to an earlier Spanish custody order under the recognition provisions of the 1996 Hague Convention. It held that, because there was insufficient information to demonstrate that the children had been given an opportunity to express their views in the Spanish proceedings, recognition of the Spanish order could potentially have been refused under Article 23(2)(b). Accordingly, the first-instance judge had been entitled to treat the Spanish order as a relevant factor rather than as a determinative measure requiring enforcement.