N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571

INCADAT legal file Hague parental abduction

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Aims of the Convention – Preamble, Arts 1 and 2
The Inner House noted that submissions which in essence sought to argue that a return would not be in the best interests of the children, were out of place in Convention proceedings. The aim of the Convention was not to determine where the children’s best interests lay, but to ensure that children were returned to the country of their habitual residence for their future to be decided there.
Arguments that the French courts were incapable of making a proper determination on such matters were rejected. The Inner House affirmed: “The policy of the Hague Convention reflects the fact that the acceding States regard the Courts of the other acceding States as capable of making proper determinations of the kind which we have outlined. Were that not so, the whole machinery of the Convention would be unworkable.”
Objections of the Child to a Return – Art. 13(2)
The Inner House upheld the conclusion of the trial judge to not give effect to the objections of the two older children.
Settlement of the Child – Art. 12(2)
The Court confirmed its existing position that there was a substantial onus on a party who contended that settlement had occurred.
Human Rights – Art. 20
The father had been legally represented for the first instance proceedings, but he then dispensed with his legal team, having been dissatisfied with their performance. He argued that the legal team had been negligent and this sufficed as a basis to allow the appeal. As an alternative he asked that the appeal be adjourned to allow him to appoint new representatives.
The father further submitted that following his remand into prison he had had insufficient access to the papers in the case and that this did not accord with the requirement that there be an equality of arms in terms of Art 6 ECHR.
The Court noted that pursuant to the Brussels II a Regulation there was a requirement to act expeditiously in Hague Convention proceedings and that an adjournment would likely cause substantial delay. Moreover, there was no guarantee the father would be successful in finding representatives who would be able to support his appeal.
He had indeed had a significant period of time in which he could have done so. The Court also noted that the father had been able to advance submissions and other material in support of his appeal and that he had been accorded additional time in which to present his case.
In light of these circumstances, the Court ruled that the father had been accorded a fair hearing; he may not have been able to focus his submissions in the way a professional lawyer would have done, but he had had every opportunity to address the issues which had arisen in connection with his appeal.
Issues Relating to Return
On 29 August 2008 the extradition of the father was ordered, see: EXTRADITION REQUEST, by THE REPUBLIC OF FRANCE Public Ministry of Saint-Etienne High Court (“Tribunal de Grande Instance”) in respect of N. C., Case reference No 2B 920/2007, Edinburgh Sheriff Court.
The Sheriff having heard representations on behalf of both parties and having, in terms of the Extradition Act 2003, decided :
that the extradition of N. C. to the Republic of France, being a category 1 territory, is not barred by reason of any of the circumstances set out in section 11(1)(a) to (j) of said Act [section 11(1)] ;
that N. C., who is alleged to be unlawfully at large after conviction of an extradition offence, was not convicted in his presence [section 20(1) and (2)] ;
that N. C. did not deliberately absent himself from his trial [section 20(3)] but would be entitled to a retrial with the rights specified in section 20(8) of the said Act [section 20(5) and (8)] ;
that the extradition of N. C. would be compatible with the Convention rights within the meaning of the Human Right Act 1998 [section 21(1)] ;
Therefore, in terms of section 21 (3) of the Extradition Act 2003, Orders N. C. to be extradited to the Republic of France, being the category 1 territory in which said European Arrest warrant was issued.