Scottish Court of Session Decisions

LORD KIRKWOOD'S OPINION.—The petitioner seeks registration and enforcement of a decision of the court of first instance and instruction Sta. Coloma de Farners, Gerona, Spain dated 8th May 1982, by virtue of which he was awarded custody of his son, Jaime Campins, in terms of secs. 16 and 18 of the Child Abduction and Custody Act 1985. The petition is opposed by the respondent, Mrs Sarah Campins, who is Jaime's mother.

The petitioner and the respondent were married at Blanes, Spain on 20th February 1974. There are two children of the marriage, namely, Josep Campins, who was born on 5th January 1971, and Jaime Campins, who was born on 29th January 1973. After the marriage the parties lived together in Spain until about December 1974 when the respondent returned to Scotland accompanied by the two children. In 1975 the respondent presented a petition for custody of both children to the Court of Session and by interlocutor of Lord Stewart dated 12th August 1977 she was found entitled to their custody. The petitioner reclaimed against that interlocutor but the reclaiming motion was refused by the First Division of the Court of Session on 27th December 1978. The petitioner sought residential access to the two children in Spain during their school holidays and he was awarded access, the first period of access to take place at Easter 1979. The award of residential access was made by the First Division only after the petitioner had given formal undertakings that he would return the children to the respondent in Scotland at the end of each period of access. The first undertaking was given by the petitioner in August 1977 before the notary to the metropolitan court of Tarragona. The second undertaking was given on 23rd June 1978 when the petitioner appeared in the presence of the presiding judge of district no. 2 of Tarragona and his clerk of court. The third undertaking was given by the petitioner on 28th December 1978 before the First Division. At that time the petitioner expressly undertook to the court that if he was allowed residential access to the children in Spain he would ensure their return to Scotland at the end of each and every period of residential access. On the faith of these solemn undertakings the First Division permitted the petitioner residential access to the children. At Easter 1979 the two children went to Spain to stay with the petitioner but at the end of the agreed access period the petitioner did not return the children to Scotland. From Easter 1979 onwards the two children (who were then aged eight and six respectively) lived with the petitioner in Spain. They attended boarding school at the College of Santa Maria Del Collel, Banyoles, Gerona. They stayed at the school on weekdays during the term and resided with the petitioner at Blanes at the weekends and during school holidays. The petitioner owns a bar in Blanes which is open from May to September each year and the children used to assist him in the bar during the summer holidays. The respondent presented a petition to the court of first instance, Sta. Coloma de Farners, Gerona seeking custody of the children but the Spanish court found in favour of the petitioner and awarded him custody of both children on 8th May 1982. The respondent appealed against the court's decision but the appeal was dismissed on 7th March 1984 when she failed to appear. From 1984 until early in 1987 the respondent regularly communicated with the children by telephone and she also visited them on occasions when she was in Spain. Early in March 1987 the respondent visited Spain, went to see the children and took them back to Scotland with her. Both children had been complaining to her that they were not happy living with the petitioner in Spain and that they wished to return to live in Scotland. Since March 1987 both children have been living with the respondent in Aberdeen.

The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children was signed at Luxembourg on 20th May 1980 and, by virtue of sec. 12 (2) of the Child Abduction and Custody Act 1985, the provisions of the Convention have the force of law in the United Kingdom.

[His Lordship then quoted secs. 16 (1), 16 (4) and 18 of the 1985 Act and art. 10 of the Convention as set out supra and continued thereafter.] Article 15 provides that before reaching a decision under para. (1) (b) of art. 10, the authority concerned in the state addressed (a) shall ascertain the child's views unless this is impracticable having regard in particular to his age and understanding; and (b) may request that any appropriate enquiries be carried out.

The parties were agreed that parole evidence would not be led and that each party would submit affidavits of witnesses.

Counsel for the respondent submitted that the court should refuse to recognise and enforce the Spanish decree of custody on the grounds set out in art. 10 (1) (b) of the Convention. In relation to art. 10 (1) (d) counsel submitted that the decree of the Spanish court awarding custody of Jaime to the petitioner in May 1982 was incompatible with the decree of custody which had been pronounced by the Court of Session in favour of the respondent in August 1977. Further, refusal of recognition and enforcement would be in accordance with the welfare of the child. In this connection, the proper test to be applied was whether it would be in the best interests of Jaime to remain in the custody of the respondent in Scotland rather than be returned to the care of the petitioner in Spain. Jaime is happy and being well cared for by the respondent in Aberdeen and he is attending Hazlehead Academy where he is getting on well. His brother, who is now 17 years of age, is also living with the respondent and he has no intention of returning to live in Spain. It is clearly desirable that the two brothers should remain together if at all possible. Further, Jaime has expressed the wish to remain in Scotland with the respondent. The respondent had brought the children back from Spain only because they had been complaining about the way they were being looked after there. They only saw the petitioner at weekends and he spent most of his time drinking and playing cards late into the night and then sleeping all day. They also said that they worked until late at night assisting in their father's bar. In particular, Jaime had complained repeatedly to the respondent and was always asking her how he could get back to Scotland. The two boys now reside with the respondent at 4 Berneray Place, Aberdeen where the accommodation consists of a sitting room, dining room, kitchen and three bedrooms. The respondent is employed as a catering manager, earns about £7,500 a year and has a company car so she can well afford to provide for Jaime. In January 1987, when the children were still living with him, the petitioner wrote to the respondent telling her to stop telephoning them or he would "send them on the first plane to Aberdeen" and that if she did not leave them in peace he would prefer to send them to Aberdeen "with all the consequences for them". After the children returned to Aberdeen the petitioner had written an abusive letter to them, referring to them inter alia as "two sons of a bitch". Further, there was evidence that Jaime had not been properly looked after by the petitioner in Spain. In particular, he was kept short of food and clothing and the respondent had had to buy his clothes and give him money for food. There was evidence that he had not received adequate dental treatment. He is now happy living with the respondent and his brother in Aberdeen where he has many friends. He has settled in at Hazlehead Academy where he is doing well and it would clearly be in his best interests to remain in the custody of the respondent. If the court was not prepared to refuse recognition and enforcement of the Spanish decree on the grounds set out in para. 1 (d) of art. 10 of the Convention, counsel submitted that recognition and enforcement should be refused on the grounds set out in art. 10 (1) (b) as it was clear that there had been a material change in circumstances, apart from the mere change in the residence of the child, with the consequence that the effects of the Spanish decree of custody are manifestly no longer in accordance with the welfare of the child. In making this submission, counsel accepted that there had technically been an "improper removal" of the child from Spain and that he would have to do more than simply establish that it would be in the best interests of the child to remain with the respondent in Aberdeen. However, on the basis of all the information contained in the affidavits which he had lodged he submitted that he had established that it was manifestly no longer in accordance with Jaime's welfare to be brought up by his father in Spain.

Counsel for the petitioner invited me to ordain registration and enforcement of the Spanish decree of custody in favour of the petitioner. He argued that the onus was on the respondent to establish that there were grounds justifying refusal of registration and enforcement and that the respondent had failed to discharge that onus of proof. In relation to the case based on art. 10 (1) (d) of the Convention, he submitted that the Spanish decree of custody was not incompatible with the decision of the Court of Session in 1977 awarding custody to the respondent. That decree had been pronounced over ten years ago and there had been such a change in the circumstances relating to the care of Jaime that the Scottish decree of custody could no longer be regarded as valid and enforceable. Before the child was removed from Spain by the respondent in 1987, both parties had accepted that the Spanish decree had to be implemented and the respondent had been exercising the access to which she had been found entitled in Spain. In any event, on the basis of her own evidence the respondent had waived her right to found on the decision of the Court of Session in her favour (c.f.Lavan v. Gavin Aird & Co. 1919 S.C. 345). In her affidavit, she stated that after custody had been awarded to the petitioner in Spain she did not want the children up rooted again and she therefore decided not to seek custody in Spain and intended instead to exercise her rights of access. She had recognised, as matter of fact, the supremacy of the Spanish decree and she had decided, in light of the change of circumstances which had taken place, to abide by the decision of the Spanish court. Counsel conceded that, if the Spanish decision was found to be incompatible with the earlier decision of the Court of Session, and the court therefore had to consider whether refusal of recognition and enforcement would be in accordance with the welfare of the child, then the appropriate test to be applied was whether or not refusal would be in Jaime's best interests. He submitted that, on the evidence, it would be in Jaime's best interests to be returned to the petitioner's custody in Spain where he could resume his education at the College of Santa Maria De Collel. However, his primary submission was that in the circumstances of this case art. 10 (1) (d) could not be founded on by the respondent as a ground for refusal of recognition and enforcement as there was now no incompatibility between the respective decisions of the courts of the two countries. In relation to art. 10 (1) (b) of the Convention, the court had to consider whether the effects of the Spanish decree are "manifestly no longer in accordance with the welfare of the child", and in this connection the test to be applied was not simply whether or not it would be in the best interests of Jaime to remain in the custody of the respondent in Aberdeen. The standard of proof to be met by the respondent was a very high one and she had to demonstrate that it would "manifestly" not be in accordance with Jaime's welfare to be returned to Spain. In the circumstances great weight had to be given to the existence of the Spanish decree of custody and to the fact that the child had lived most of his life in Spain until he was removed by the respondent early in 1987. The court could not take account of the change in residence of the child after what was conceded to have been an improper removal from Spain and, in relation to the question of the passage of time, the court should look principally at the circumstances which obtained when Jaime was removed from Spain and place less reliance on developments which had taken place since he had returned to Scotland. Such changes in circumstances as had taken place since March 1987 were quite insufficient to establish that it would manifestly not be in accordance with Jaime's welfare to be returned to the custody of the petitioner. With regard to the welfare of the child, he had lived most of his life in Spain, his first language was Spanish and he had been receiving an excellent education in Spain until his removal by the respondent. While the respondent and Jaime's brother were critical of the way Jaime had been looked after by the petitioner in Spain, it was significant that the independent witnesses all spoke to the fact that the petitioner had looked after him well. In particular, he was well fed and well clothed and attended a good school. While counsel accepted that the court was obliged to ascertain, and take account of, Jaime's own views, he submitted that those views could not be determinative of the issue as to his future welfare. It would obviously be best for Jaime now to be returned to Spain so that he could be cared for by the petitioner in the home he has known best and resume his education at college which had been disrupted by his improper removal from Spain by the respondent. In the whole circumstances, the court should recognise and enforce the Spanish decree of custody in favour of the petitioner.

There can be no doubt that when the petitioner failed to return the two children to the respondent in Scotland at the end of the agreed period of access at Easter 1979 he was guilty of a deliberate and flagrant breach of the solemn undertakings which he had given to the court in Tarragona and to the First Division of the Court of Session. Further, it would appear that his breach of the undertakings which he had given was a major factor in enabling him to obtain from the Spanish court the decree of custody of Jaime which he is now seeking to enforce. However, counsel for the respondent frankly conceded that, having regard to the terms of the relevant articles of the Convention and the fact that the breach of undertaking took place over nine years ago, he could not found in the present proceedings on the breach of the undertakings except in the limited sense that it demonstrated that the petitioner was a man who was prepared to break a solemn promise in order to achieve his objective.

I consider first the respondent's case under art. 10 (1) (d) of the Convention. By interlocutor of Lord Stewart dated 12th August 1977 the respondent was found entitled to the custody of Jaime and the petitioner's reclaiming motion against that interlocutor was refused by the First Division on 28th December 1978. After the petitioner obtained access at Easter 1979 and failed to return Jaime at the end of the agreed period of access the First Division, by interlocutor dated 1st May 1979, ordained the petitioner to deliver up the child to the respondent in Scotland. The petitioner failed to obtemper that interlocutor and he did not thereafter take any steps in the Scottish courts to have the award of custody in favour of the respondent recalled or to seek from the Scottish courts an order for custody of Jaime in his favour. In the circumstances I am of the opinion that, although over ten years have elapsed since the original decree of custody in favour of the respondent was pronounced in Scotland, that decree of custody is still a valid and enforceable decree. The petitioner sought to argue that in the circumstances the respondent had waived her right to enforce the Scottish decree and had acquiesced in the enforceability of the Spanish decree of custody. In my opinion, this argument is not open to the petitioner as he has no averments on record which gave fair notice to the respondent that such an argument was to be advanced. Even if such an argument had been open to the petitioner, I am satisfied that the evidence does not establish that the respondent at any stage waived her right to found on the Scottish decree of custody. After the petitioner failed to return Jaime at the end of the access period at Easter 1979 the respondent actively sought an order for custody from the Spanish court but was unsuccessful. She went to Spain on a number of occasions and visited Jaime, particularly at his school. She states that during 1983 and 1984 she came to a decision that she should only seek residential access to the children, and not custody, as she did not want the children to be the subjects of further court battles and they had, by that time, settled down in Spain and she did not want them to be uprooted. In my opinion, the evidence does not establish that the respondent had waived her right to enforce the Scottish decree. It seems to me that all the evidence discloses is that she had decided, in the interests of the children, to resign herself to the fact that she was not going to be able to obtain a decree of custody from the Spanish courts and to make the best of what was to her an unsatisfactory situation and exercise access to the children as often as was practicable in the circumstances. After Jaime had repeatedly indicated to her that he was not happy in Spain and wanted to return to Scotland she arranged for his return.

In the foregoing circumstances I am satisfied that the Scottish decree of custody is still valid, that the respondent did not at any stage waive her right to seek to enforce that decree and that the Spanish decree of custody is incompatible with the decree of custody which was originally pronounced by the Court of Session in favour of the respondent in 1977. I therefore turn to consider if refusal of recognition and enforcement of the Spanish decree is in accordance with the welfare of the child. In that connection I have had regard to the terms of all the affidavits of witnesses lodged by both parties and I do not intend to rehearse all the evidence thereby adduced. While the respondent and her elder son Josep are critical of the way Jaime was looked after by the petitioner in Spain I have reached the conclusion that most of these criticisms have not been made out. During the school terms Jaime resided at a college which appears to have provided him with a reasonably satisfactory standard of education. He stayed with the petitioner at weekends and during the school holidays and while there is evidence that he often assisted in his father's bar during the summer months until a comparatively late hour, it appears that this is not unusual in that area of Spain. I do not consider that it has been established that Jaime was kept short of food or that he was not properly clothed, although I accept that on a number of occasions the respondent did provide him with items of clothing. However, I consider that the condition of Jaime's teeth was neglected while he was in Spain. Mr Manson, the dentist who examined Jaime when he returned to Scotland in March 1987, described his teeth as being in a terrible condition and he doubted if he had seen a dentist for a very long time having regard to the degree of dental neglect which he found at the time of his examination. There was evidence that the petitioner wrote to the respondent in January 1987 telling her to stop telephoning the children or he would "send them on the first plane to Aberdeen" and that after the children had returned to Scotland he sent them an abusive letter referring to them as "two sons of a bitch". While the terms of the letter which he wrote to the children were, to say the least, unfortunate, I am prepared to accept that both letters were written by the petitioner when he was in a highly emotional state and cannot properly be founded on by the respondent as indicating that the petitioner did not have the interests of the two children at heart. I consider that the petitioner did do his best to bring up the children properly but at the same time it is clear that by 1986 Jaime had become unhappy living with his father in Spain and had expressed a strong desire to return to live in Scotland. Since March 1987 Jaime has been living with the respondent in Aberdeen and I am satisfied that he is happy and well cared for there and he has many friends. The house has adequate accommodation and the respondent is financially in a position to provide for him. He is attending Hazlehead Academy where he has settled in well. His headmaster reports a steady improvement in his overall progress. Home economics is his best subject and his practical work is excellent. He appears happy and settled and he mixes well with the other pupils. His brother, Josep, who is now 17 years of age, is also living with the respondent and has indicated that he intends to remain in Scotland and is not going to return to Spain. I had the advantage of interviewing Jaime with a view to ascertaining his views. I was very impressed by him. He struck me as being an intelligent and level headed boy who knows what he wants to do with his life. He had an excellent command of the English language. He was adamant that he wants to remain in Scotland. He is happy living with the respondent and feels he is doing well at his new school. He wishes to make a career for himself in the restaurant and catering business and in that connection it seems to me that the education which he is receiving at Hazlehead Academy is, if anything, probably better suited to his chosen career than the education he was receiving in Spain. He is also very anxious to continue living with his elder brother with whom he gets on very well and whom he described as "an important part of my life". Jaime is now aged 15 and a half and in the circumstances I consider that a great deal of weight should be given to his expressed wish to remain with the respondent and his brother in Scotland. In the whole circumstances I have been left in no doubt that it is in Jaime's best interests to remain with the respondent in Scotland and that refusal of recognition and enforcement of the Spanish decree is in accordance with his welfare.

In case I am wrong in concluding that the Spanish decree founded on by the petitioner is incompatible with the earlier Scottish decree of custody, it is right that I should consider the respondent's case based on art. 10 (1) (b) of the Convention. In terms of art. 10 (1) (b) I have to consider whether or not it has been established that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after the improper removal from Spain in March 1987, the effects of the Spanish decree of custody are "manifestly no longer in accordance with the welfare of the child". Applying these criteria to the evidence before me as best I can I have reached the conclusion that the respondent has established that by reason of the change of circumstances which has taken place, recognition and enforcement of the Spanish decree of custody would manifestly no longer be in accordance with Jaime's welfare. I was bound to ascertain Jaime's views and, as I have already indicated, I concluded that his views were entitled to very great weight. He is happy living with the respondent in Aberdeen. He is well settled in at his new school and he is staying with his elder brother to whom he is greatly attached and who does not intend to return to Spain. In the circumstances I cannot believe that it would be in accordance with Jaime's welfare now to force him, at the age of 15 and a half, to return to Spain against his will and thereby separate him from his brother and cause yet further disruption to his education. In the circumstances I am satisfied that the effects of the Spanish decree are manifestly no longer in accordance with Jaime's welfare.

In the whole circumstances I am of the opinion that on the grounds specified in art. 10 (1) (b) and (d) of the Convention the Spanish decree of custody dated 8th May 1982 should not be recognised in any part of the United Kingdom. I shall therefore sustain the third and fourth pleas-in-law for the respondent and refuse the prayer of the petition.