A Portuguese man whose daughter was “wrongfully removed” from Portugal to Scotland by her mother has failed in a legal bid to have the 10-year-old girl returned to the country of her birth, reports Scottish Legal News.
A judge in the Scottish Court of Session refused to grant an order under the Child Abduction and Custody Act 1985 after ruling that the child, who had been living with her Portuguese mother in Hamilton since leaving Portugal more than six years ago, had settled in Scotland within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction.
Lady Wise heard that the 39-year-old petitioner and the respondent, both Portuguese citizens, had a child, born in Portugal in September 2006.
The petitioner and respondent had litigated the issue of custody of their daughter and had been sharing her care equally by virtue of an order of their local court in September 2009.
The girl lived in Portugal until December 2011 when she was wrongfully removed from Portugal by her mother. On discovering that the child had been abducted, the petitioner took all reasonable steps to find out where she was.
He suspected she had gone to Brazil, a country in which she had lived for some years, until they were eventually found to be living at an address in Hamilton in Scotland.
The father lodged a petition in November 2016 seeking an order for the return of his daughter to Portugal.
Given that almost five years had passed between the girl’s abduction and the raising of the petition for her return, the respondent relied on Article 12 of the Hague Convention, which provides an exception to the requirement to order the return of a child removed from his or her habitual resident if it is demonstrated that that child is now settled in a new environment.
It was contended that there was a “grave risk” that the return of the child would expose her to “physical or psychological harm” or otherwise place her in an intolerable situation, and that the child objected to being returned having attained an age and degree of maturity at which it was appropriate to take account of her views.
The child was seen to have settled in well and that she should not be returned to Portugal. She had not lived in hiding and had been settled happily for five years with her school’s head mistress stating that the girl had expressed “positive aspirations” about her life in Scotland.
A report from a child psychologist said she had many friends and had developed a number of hobbies and interests in Scotland, including swimming and playing football, adding that she was clear in telling the psychologist that “this (Scotland) is my home.”
The court was also told that the child was happy in the care of her mother, with no sense of loss or sadness at the absence of any contact with her father, and that she had said that she would run away if she was sent to Portugal against her will.
The respondent claimed also that the petitioner was a “violent and aggressive man” who was abusive to her both during their relationship and after it ended and that there was evidence of corporal punishment being inflicted on the child by the Portuguese father.
The father has been given joint custody by a Portuguese court by the Scottish judge said that the passage of time since the mother wrongly removed the girl from Portugal was “so significant that different considerations additional to the aim of a prompt return to the county of habitual residence require to be addressed.”
Judge Lady Wise decided to exercise her discretion in favour of refusing to grant an order for the girl’s return to Portugal.
In a written opinion, Lady Wise said, “I conclude that to require this ten year old girl to leave her home of several years and return to what she now feels is a foreign country, when the prospect of that makes her feel sad, upset and angry would be contrary to her best interests. Her strongly held views, coupled with the length of time she has been settled here, lead to those interests prevailing when balanced against the primary purpose of the Convention.”
