Introduction
The case of FPS v SM [2024] CSIH 20 discusses critical issues regarding the interplay between international law and domestic courts, focusing on child abduction and custody within the context of international treaties. The judgment was delivered by Lady Wise, with Lord Malcolm and Lord Tyre concurring. FPS, the petitioner and reclaimer, is Spanish and the father of two boys, Charles (13) and James (8). SM, the respondent, is British and the mother of the children. The family lived in Spain until January 2022 when the parents separated. The children primarily lived with their father in Spain. In December 2023, the children travelled to Scotland to visit their mother but refused to return to Spain, leading to their wrongful retention in Scotland. FPS sought their return under the 1980 Hague Convention on Child Abduction, but the Lord Ordinary refused the return order based on the children’s objections. The case raised the following issues:
1. Children’s Objections: Whether the objections of children, given their age and maturity, should be determinative in deciding their return.
2. Best Interests of the Child: How the best interests of the child should be interpreted when they have expressed clear objections to being returned to their habitual residence.
3. Recognition of Foreign Orders: The role of foreign custody orders and their enforcement under domestic law.
4. Application of International Law in Domestic Courts: The extent to which the 1980 Hague Convention and the 1996 Hague Convention should be applied in domestic court decisions regarding the return of abducted children.
5. Impact of Brexit: The influence of Brexit on the application of international treaties in UK courts.
Analysis
1. Children’s Objections
The court recognized the objections of both children, noting their age and maturity. The judgment referenced Lord Malcolm’s statement in W v A [2020] CSIH 55, affirming that once a child’s objection meets the age and maturity threshold, their views should be considered, though not necessarily determinative (para 7). The Lord Ordinary found the children’s objections to be strong and uninfluenced, warranting refusal of the return order (para 9).
The detailed account of the children’s objections, including Charles’ dramatic actions at the airport, underscored the authenticity and strength of their views. The child welfare reporter’s findings further supported the conclusion that the children’s objections were their own and not influenced by the mother.
2. Best Interests of the Child
The judgment underscores the paramountcy of the child’s best interests, aligning with the United Nations Convention on the Rights of the Child (UNCRC), soon to be incorporated into Scots law. Article 3 of the UNCRC requires that the best interests of the child shall be a primary consideration in all actions concerning them. Article 12 requires that a child be provided the opportunity to be heard in any judicial and administrative proceedings affecting them. Proceedings under the 1980 Hague Convention are clearly relevant proceedings in that context (para 32). The Lord Ordinary’s decision reflects a broader shift towards prioritizing the child’s welfare and views over strict adherence to international custody orders. This approach aligns with the upcoming United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, which will further embed the principles of the UNCRC into Scots law, reinforcing the requirement to consider the child’s best interests and their right to be heard in judicial proceedings.
3. Recognition of Foreign Orders
The reclaimer highlighted the Spanish court’s order granting FPS sole custody. However, the court did not give this order determinative weight due to the lack of procedural fairness, particularly the absence of the children’s views being considered in the Spanish proceedings (para 20). The recognition provisions of the 1996 Hague Convention, particularly Article 23(2)(b), allow refusal of recognition if the child was not given an opportunity to be heard. In the context of this case, the Lord Ordinary considered the Spanish order as part of the background but not as overriding evidence that would preclude a consideration of the children’s objections. This approach reflects a balanced application of international law within the framework of domestic judicial discretion.
4. Application of International Law in Domestic Courts
The case hinges on the application of the 1980 Hague Convention, which aims to ensure the prompt return of abducted children to their country of habitual residence. The reclaimer argued for the return of the children based on the wrongful retention. However, Lady Wise emphasized that the discretion to refuse return under Article 13 of the 1980 Convention is not limited by international obligations, and a child-centric approach is required. This aligns with Baroness Hale’s perspective in In Re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55, where she stated that courts must consider the child’s objections authentically and not be unduly influenced by other factors (para 46).
Baroness Hale further elaborated that taking account of the child’s views does not mean those views are always determinative. Courts must assess the nature and strength of the objections, whether they are the child’s own views or influenced by the abducting parent, and how they align with the child’s welfare and general Convention considerations. The older the child, the more weight their objections carry, but this does not imply that their objections should only prevail in exceptional circumstances. In In Re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55, Baroness Hale emphasized the necessity for courts to consider a broad range of factors when a child objects to returning. These include the nature and strength of the child’s objections, their authenticity, and their alignment with the child’s overall welfare. The discretion exercised by courts is substantial but must remain focused on the child’s best interests, balancing them against the principles of the Hague Convention.
The decision also referenced the Extra Division decision in W v A [2020] CSIH 55, where Lord Malcolm emphasized that the best interests of the child should be at the forefront, and not solely the policy of deterrence inherent in the 1980 Hague Convention (para 7). The recognition and enforcement provisions of the 1996 Hague Convention also came into play. Articles 23-27 of the 1996 Convention outline the criteria for recognizing and enforcing foreign custody orders. However, these provisions are subject to the child’s best interests and procedural fairness, particularly whether the child had an opportunity to express their views in the foreign proceedings (para 8). In previous cases, such as M v C [2021 SC 324], the Scottish courts have emphasized the importance of the child’s right to be heard. The failure to consider the child’s views can result in non-recognition of foreign orders. This principle aligns with Article 12 of the UNCRC, reinforcing the need for a child-centric approach in international custody disputes.
5. Impact of Brexit
The judgment occurs in a post-Brexit context, where the Brussels II bis Regulation no longer applies, and the UK relies on the Hague Conventions. This shift exacerbates exclusionary tendencies by necessitating stricter adherence to international conventions without the automatic mutual recognition previously afforded by EU membership. The case demonstrates the courts’ cautious approach in balancing international obligations with domestic considerations. Prior to Brexit, the Brussels II bis Regulation provided a robust framework for mutual recognition and enforcement of custody and parental responsibility orders across EU member states. This regulation facilitated smoother cooperation and quicker resolution of cross-border family disputes. However, with the UK’s departure from the EU, the Brussels II bis Regulation no longer applies, leaving the UK to rely primarily on the Hague Conventions.
The absence of the Brussels II bis Regulation means that cases like FPS v SM must rely solely on the Hague Conventions. This reliance places greater emphasis on the procedural and substantive requirements of these conventions, potentially leading to increased scrutiny of foreign orders and greater consideration of the child’s best interests as interpreted under domestic law. The Hague Conventions, while comprehensive, do not provide the same level of integration and automaticity in recognition and enforcement as the Brussels II bis Regulation, necessitating a more cautious and case-by-case approach by domestic courts. Brexit has also highlighted exclusionary tendencies within the UK legal system. There is an increased need for domestic courts to balance international obligations with national legal principles and the best interests of the child. The absence of a seamless EU framework requires courts to navigate complex international legal landscapes, ensuring that international law is applied in a manner consistent with domestic values and the paramountcy of the child’s welfare. The courts’ approach in FPS v SM reflects this cautious balancing act. The judgment demonstrates a careful consideration of international obligations under the Hague Conventions, while also emphasizing the importance of the child’s best interests and the procedural fairness of foreign orders. This nuanced approach is essential in ensuring that international law serves the welfare of children in cross-border disputes, particularly in a post-Brexit context where automatic mutual recognition is no longer guaranteed.
Conclusion
The case of FPS v SM [2024] CSIH 20 reflects the ongoing evolution in the application of international law within domestic courts, particularly concerning child abduction and custody. The judgment underscores the importance of considering the child’s objections and welfare, recognizing international obligations while ensuring procedural fairness and adherence to the child’s best interests. The impending incorporation of the UNCRC into Scots law signifies a continued commitment to these principles. The case also highlights the complexities introduced by Brexit, necessitating a careful balance between international and domestic legal frameworks.
Advocate, Malhotra & Malhotra Associates, India.
LL.M [London]&Felix Scholar, School of Oriental &African Studies, University of London, London.
Email:ankitmalhotra97@gmail.com, Website :https://www.ankitmalhotra.co.in
Read more about child abduction and child relocation in the UK – England and Wales.