GNO v. ANO - Contact Order Enforcement under Child Abduction Act 1985

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  Petition of GNO for orders under the Child Abduction and Custody Act 1985 (Court of Session) [2026] CSOH 36 (07 April 2026)

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**** OUTER HOUSE, COURT OF SESSION [2026] CSOH 36 P662/25 OPINION OF LADY TAIT in the Petition of GNO Petitioner for orders under the Child Abduction and Custody Act 1985 Petitioner: Donachie; Brodies LLP Respondent: Laing; SKO Family Law Specialists **** 7 April 2026 Introduction [1] The petitioner seeks (i) an order for direct and indirect contact with the parties' child ANO (born in 2015 and aged 10) ("the child"); and (ii) a specific issue order to regulate retention of the child's passports. He is the child's father. [2] The parties married in 2012 and separated in 2021. They were divorced in August 2022 in Canada. The parties and the child are British and Canadian nationals. The petitioner resides in Canada. The child resides with the respondent in Scotland. [3] By order of the King's Bench (Family Division) of Manitoba dated 16 August 2022 ("the Manitoban Order"), the child is to reside with the respondent and the petitioner is to have inter alia extensive direct and indirect contact with the child. The Manitoban Order 2 reflected the terms of the parties' separation agreement dated 15 December 2021 ("the Separation Agreement"). In terms of clause 6.5 of the Manitoban Order, the respondent was granted leave to relocate with the child to Scotland and to reside here permanently. In December 2021, the child and respondent relocated to Scotland. [4] While the exact arrangements are to be agreed between parties, in terms of clause 6.2 of the Manitoban Order, direct contact between the child and petitioner is to take place (1) on at least seven consecutive days during the winter or spring school holidays; (2) on at least 14 consecutive days during the summer holidays; and (3) upon written request by the petitioner, consent not to be unreasonably withheld by the respondent, on at least a further 30 days to accommodate special extended family celebrations, special events or other situations. [5] While the exact arrangements are to be agreed between parties, in terms of clause 6.4 of the Manitoban Order, indirect contact is to take place between the child and petitioner (1) during weeks when the child is attending school, on Saturdays and Sundays during the early evenings; (2) during weeks when the child is on school holidays, once per day; (3) on the child's birthday; (4) on Father's Day; and (5) upon written request by the petitioner, consent not to be unreasonably withheld by the respondent, on special extended family celebrations, special events or other situations. [6] The petitioner seeks the assistance of this court in securing the effective exercise of his rights of access in terms of the Manitoban Order in terms of Article 21 of the 1980 Convention on Civil Aspects of International Child Abduction (the "Convention"). He avers that the respondent has failed regularly to facilitate indirect contact; has insisted on supervision of direct and indirect contact without reasonable basis; and that on occasions direct contact has not taken place when the petitioner has been in Scotland. 3 [7] The respondent avers that the petitioner was verbally and physically abusive and controlling towards her. He was physically abusive in the child's presence. He physically chastised the child. He has engaged in inappropriate conversations with the child and exposed her to harmful influence. While it is in the child's best interests to have an ongoing positive relationship with the petitioner, it is reasonable for there to be safeguards. [8] The parties are agreed that direct contact should take place in Scotland for seven days over Easter and for seven days in October. They are agreed that indirect contact should place on a weekly basis but dispute its frequency and duration. They dispute whether the October direct contact should take place in part during the school term; and whether there should be an order for direct contact on a further 30 days throughout each year as agreed between the parties to accommodate special extended family celebrations, special events or other situations. [9] The parties agreed that the petitioner would make a fresh application for or renew the child's British and Canadian passports. He seeks a specific issue order to retain both or one of the passports. The respondent seeks an order to retain both passports. The Law [10] Article 21 of the 1980 Hague Convention on Child Abduction ("the Convention") provides: "An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or 4 protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject." [11] In seeking to secure the effective exercise of rights of access, it is competent for this court to make a contact order (of new); applying the domestic law of the child's habitual residence; and which may be different to any order previously made in another contracting state: Donofrio v Burrell 2000 SLT 1051. There is no mutual enforcement of rights of access. The domestic law of the contracting state of the child's habitual residence applies. The court is required to consider the welfare of the child as the paramount consideration : Re G (A Minor) (Enforcement of Access Abroad) [1993] Fam 216. [12] This court can make an order which regulates a party's parental responsibilities and rights as provided for in sections 11(1) and (2) of the Children (Scotland) Act 1995 ("the 1995 Act"). The relevant orders in the present petition are a contact order and a specific issue order. [13] Section 11(7) of the 1995 Act provides: "...in considering whether or not to make an order under subsection (1) above and what order to make, the court ? (a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and (b) taking account of the child's age and maturity, shall so far as practicable ? (i) give him an opportunity to indicate whether he wishes to express his views; (ii) if he does so wish, give him an opportunity to express them; and (iii) have regard to such views as he may express." [14] Further, the court must have regard to the matters set out in section 11(7B) to (7D): "(7B) Those matters are-- (a) the need to protect the child from-- (i) any abuse; or (ii) the risk of any abuse, which affects, or might affect, the child; (b) the effect such abuse, or the risk of such abuse, might have on the child; 5 (c) the ability of a person-- (i) who has carried out abuse which affects or might affect the child; or (ii) who might carry out such abuse, to care for, or otherwise meet the needs of, the child; and (d) the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under subsection (1), would have) those responsibilities. (7C) In subsection (7B) above-- abuse' includes -- (a) violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress; (b) abuse of a person other than the child; and (c) domestic abuse;conduct' includes-- (a) speech; and (b) presence in a specified place or area. (7D) Where-- (a) the court is considering making an order under subsection (1) above; and (b) in pursuance of the order two or more relevant persons would have to co- operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make the order." **** Evidence The petitioner The petitioner's affidavit [15] The petitioner is a doctor who works in medical research. He travels extensively and internationally for work. He speaks to a close and loving relationship with the child, characterised by his interest in her schooling and friends, in-depth conversation, sharing of news, giving of gifts, outings, fun, laughter and their shared religious beliefs. The child has been delighted to introduce the petitioner to her school friends and teachers. While the petitioner expresses disappointment when indirect contact does not take place as expected, he appreciates when the child lets him know, apologises and reschedules. The child 6 sometimes initiates contact. Nonetheless, the petitioner considers that the respondent often impedes his access to the child and that there is no need for her unilaterally to impose any supervision or restriction. [16] He describes an occasion when the child was crying profusely and alleged that the respondent had slapped her hard on the face and dragged her harshly. The respondent pushed the child on two occasions. In June 2021 the petitioner was arrested for threatening and assaulting the respondent. The respondent appeared to retract the allegations and sought contact with the petitioner although there was a no contact order. The case against the petitioner was diverted from prosecution and he was referred to the Restorative Justice Centre. He undertook and completed the diversion process. He subsequently initiated divorce proceedings. [17] Initially after the child's relocation to Scotland, the respondent adhered to the Manitoban Order and Separation Agreement. Later, the respondent failed to adhere to all necessary communication. From May 2024 to March 2025 was the most difficult period when the respondent almost cut the petitioner off completely from having contact with the child. The respondent blocked all communications from the petitioner. He received messages from the child late at night, crying and stating that the respondent had been treating her very badly, including hitting her sometimes, and neglecting her while spending time with her boyfriend. The child begged to be taken back to Canada. The petitioner contacted both the social work department and police in Scotland. The issues around contact occurred after the respondent commenced her relationship with her current partner. [18] The child has often asked for indirect contact to be extended. The petitioner encourages, supports, and guides the child to attain her full potential. She needs and enjoys emotional support and encouragements from the petitioner especially in difficult times. She 7 confidently shares her worries with him as the respondent does almost nothing to help her. The petitioner has continuously and consistently demonstrated his availability, love, and absolute care for and commitment to the child. Other affidavit evidence for the petitioner [19] The petitioner produced an affidavit from a clinical psychologist (Dr KS) whom he has consulted for several years. The witness spoke of the petitioner as a doting and caring father who loves and is concerned for his child. The witness has not observed the child and petitioner together. [20] A further affidavit was produced from CS who attends the local church where the petitioner and child worship together when in Scotland. She first met the petitioner in 2024 and has met him with the child on three to four occasions. The child appears happy with the petitioner. The petitioner has shared concerns with her about the child's safety with the respondent. ****** The respondent The respondent's affidavit [21] The respondent is the child's mother. She speaks to becoming isolated when the family lived in Canada and to the petitioner being controlling, threatening and putting his hand on her throat on one occasion. He regularly chastised the child physically. The respondent audio recorded an incident when the petitioner was aggressive towards her in Canada (7/8). She sent it by accident to her sister who reported the incident to police. The petitioner was arrested and a protection order was put in place whereby the petitioner could not stay in the family home. 8 [22] After the respondent and child relocated to Scotland, the petitioner made the child feel guilty and expressed disappointment in her if the video calls did not take place. He told her to report the respondent to the police and to social workers. The respondent supervised the first direct contact visit in Scotland. Thereafter the contact was unsupervised and became residential. The petitioner sent several abusive and threatening messages to the respondent (7/2 to 7/4). The respondent stopped communication with him in May 2024. The petitioner then agreed to mediation which did not conclude. The respondent has proposed communication through her brother which the petitioner has refused. The child's indirect contact with the petitioner continued but the child became stressed and anxious. The petitioner was critical of the respondent. He made the child feel guilty if she did not adhere to a rigorous schedule. [23] In early 2025, the child claimed that the respondent had hit her and was encouraged to report the claim to her school. The social work department became involved. They had no concerns after considering exchanges between the parties and recordings of the petitioner and child's calls. No indirect contact took place between February and 22 April 2025. Following the present petition, interim orders have been made for interim direct and indirect contact. The child started at a new school in August 2025. It is a private school to and from which the child requires to travel daily. She has a long school day and extra- curricular activities. She plays hockey on Saturdays and on Wednesdays and Fridays after school. When the child is tired, she is less likely to want to engage in indirect contact despite encouragement. The respondent seeks that any order for indirect contact allows flexibility around the time and day of the week to accommodate the child's extra-curricular and social commitments. She seeks that any direct contact starts during term-time so that the school has some oversight of contact. 9 Other affidavit evidence for the respondent [24] The respondent produced an affidavit from her brother (GCT). He speaks to the child's behaviour changing after video calls with the petitioner and of the child being rude to the respondent. On a separate occasion the child was with a friend when it was time for her call with the petitioner. The child shut herself and her friend in a room and would not allow the respondent in. The respondent encourages the child to participate in the calls. The witness has sent infrequent messages to the petitioner at the respondent's request to alert him to any changed arrangements or difficulties. The petitioner does not respond. The witness is happy to assist to ensure that the child has a relationship with the petitioner and that the respondent does not have to engage in abusive communication. Child's views [25] Morag McEwan, Advocate was appointed as child welfare reporter by interlocutor dated 9 October 2025 to undertake enquiries and to report to the court on the child's views on direct and indirect contact with the petitioner; and whether the child's views are independently her own or are, to any extent, the result of influence, and if the product of influence, what the nature and extent of that influence may be. [26] The child impressed the reporter as exceptionally articulate and thoughtful for a 10-year-old child. She seemed to be unaware that the reporter would be coming to speak with her. [27] The child speaks with the petitioner once to twice per week and is generally happy with that. When she comes home from school, she likes to speak to her friends. She moved to a new school in August 2025 and cannot see friends from her previous school during the 10 day. While she likes her new school, and has made friends there, she is very close to her old friends. Communicating with friends is very important to her. She described calls with the petitioner lasting for hours. During those calls her friends are communicating and it makes her feel left out. If a pre-scheduled call does not take place, she is concerned that the petitioner will be "mad" at her. She feels compelled to call him. She described finding this stressful and explained that sometimes she is just "too tired to hear the moaning". In principle she is happy to speak with the petitioner, and do so more often than currently, but does not want these calls to get in the way of the time she spends communicating with friends after school. [28] During the petitioner's last visit to Scotland, the child stayed in a hotel with the petitioner for about 3 to 4 days. She described their time as "really fun". She confirmed that she would be happy to stay with the petitioner; that it is "nice" when he visits; and that they have fun. The petitioner's visits had been supervised at first to make sure that she was safe. She volunteered that the petitioner does not like the respondent; that there was an incident when they were living in Canada; that the petitioner calls it "the day the devil came" (noting that he is very religious); her parents were fighting and the petitioner hit the respondent. She saw the petitioner hit the respondent and stated that "it happens a lot". Two days later, the police arrested the petitioner. Her parents fought a lot. The child volunteered that the petitioner used to live in Nigeria, and she thinks that his parents used to hit him. Asked whether the petitioner had ever hit her, the child confirmed that he had and she never understood it. It did not make her feel unsafe during contact and did not change her view on direct contact in a hotel in Scotland. The petitioner had not hit her during his visits to Scotland. The child is content with the petitioner visiting during term- time or holidays for the same period as previously. If he is coming to visit her for a week, 11 she would like to have time at the weekend to spend with her friends. She finds it difficult that during contact she cannot telephone her friends. The petitioner barely lets her use her telephone and only permits her to message the respondent briefly to say goodnight. [29] The reporter concluded that the child's views had been formed independently. She did not have the impression of influence from either parent. Her views were held for reasons which were entirely consistent with her age and level of maturity: her desire to maintain and develop relationships with her friends. The child provided balanced and considered explanations. She did not appear to take the side of one parent over the other. It was the reporter's sense that a difficulty for the child is that she feels cut off from her world when she spends time with the petitioner and that this underpins any reluctance she may have to communicate with him as regularly as he would like. [30] The child was clear and consistent that she would like to see the petitioner and to receive calls from him. She would, however, like greater flexibility surrounding that contact. She would like her indirect contact to be less regimented. She feels pressure to call him at certain times, and that if she does not, she becomes stressed about his anticipated reaction when they next speak. **** Decision [31] The disputed matters are: (i) whether the October week's residential contact should start on the last Wednesday of term-time or on the first day of the October school holiday; (ii) whether there should be direct contact on a further 30 days throughout each year as agreed between the parties to accommodate special extended family celebrations, special events or other situations; 12 (iii) whether indirect video contact should take place once or twice per week and the duration of indirect video contact; and (iv) who should hold each of the child's British and Canadian passports once issued. [32] I have to determine what is in the child's best interests. I am mindful that her welfare is the paramount consideration, that I must not make an order unless it would be better for her that the order be made than not and that, taking account of her age and maturity, I must have regard to her views. I must also have regard to the factors in section 11(7A) to (7D) of the 1995 Act as set out above, if applicable on the facts. [33] The parties are agreed that residential contact should take place in Scotland. The child would like there to be residential contact as has occurred, that is in a hotel in Scotland subject to her having time at weekends with her friends. Easter contact has been agreed for seven days to include from Good Friday to Easter Monday. The only dispute about residential contact during October is whether it starts on the last Wednesday of term-time or on the first day of the October school holiday. The respondent seeks the former so that the child could report any concerns about contact to a teacher. That is against a background of the petitioner's behaviour towards the child as disclosed by the child to the child welfare reporter. The petitioner disputes any such behaviour. However, the child's position is that there has been no recurrence of any such behaviour in Scotland. Were such an arrangement put in place, the first 2 to 3 days of the holiday would take place while the child is in school and so limit her time with the petitioner. I am not satisfied that such prescription of contact is in the child's best interests. [34] The petitioner seeks two fixed weeks of residential contact and does not seek the further 14 days of summer contact provided for in the Manitoban Order. I understand that 13 is because of the demands of his work schedule and the expense of travel. These are understandable factors. However, he seeks an additional 30 days of contact as agreed between the parties to accommodate special extended family celebrations, special events or other situations. The petitioner could neither specify nor give any indication of when such contact might take place. Since the child's relocation in 2021, the petitioner has exercised two periods of contact each year in Scotland except for 2025 when there was a third visit to celebrate the child's Sacrament of Holy Communion. Standing the communication difficulties between the parties, I am not satisfied in terms of section 11(7D) of the 1995 Act that it would be appropriate to make an order for a further 30 days' contact which would require the parties to co-operate. Further, the court does not have the child's views on such extensive additional contact. [35] The child's views were most particularly expressed in relation to the operation of indirect contact. She clearly articulated that she would like greater flexibility and would like her contact to be less regimented. She currently feels pressure to call the petitioner at certain times. She can become stressed about the petitioner's anticipated reaction when they speak. Similarly, it is apparent from the petitioner's affidavits that there is an intensity in his approach to indirect contact in the way in which he records the duration and history of calls. Again, that is understandable given their geographical separation and his keen interest in the child's welfare but it fails to recognise the importance to the child of her developing friendships and her growing independence. The child and petitioner evidently have a close and loving relationship and one which the child values. That relationship should be able to accommodate changes in the child's social development as she matures. The petitioner should be able to adapt to and accept such changes. If he insists upon calls too frequently or of too long a duration, there is a risk that the child will feel under greater pressure. That is 14 not in her best interests and may militate against the indirect contact operating successfully. I consider that video contact by WhatsApp should take place once per week on a Saturday failing which Sunday at 7.00pm (UK time) for a maximum of 30 minutes or at such other time as agreed. Both parties moved for indirect contact on a Saturday evening. I understand that it is better for such contact to be at the weekend but the available evidence suggests that the child may have activities or time with friends on a Saturday. If the video calls cannot take place on a Saturday, the default should be a Sunday. It is important to emphasise the respondent's responsibility to encourage, prioritise and support weekly indirect contact given that is in the child's best interests to maintain a relationship with the petitioner. [36] Finally, I consider it appropriate to make a specific issue order for the child's British and Canadian passports to be held by the respondent as the child resides with her. The passports should be readily available for the child's use for any future travel whether with either party or through school. I see no benefit in them being held by the petitioner. [37] I shall find no expenses due to or by either party as agreed between parties.

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