Scottish Court of Session Decisions

The reclaiming motion called before the First Division, comprising the Lord President (Hope), Lord Coulsfield and Lord Milligan for a hearing.

At advising, on 26 June 1996, the opinion of the court was delivered by Lord Coulsfield.

OPINION OF THE COURT—This is a reclaiming motion against an interlocutor dated 15 March 1996 by which the Lord Ordinary inter alia ordained the petitioner to deliver Alison Claire Calleja, the child of the marriage between the petitioner and the respondent, to the respondent. The petitioner, who is Scottish, and the respondent, who is Maltese, were married in Glasgow on 28 June 1983. After the marriage, they lived together in Malta. They have one child, Alison, who was born in Scotland. After her birth, however, the petitioner returned to live with the respondent in Malta. There had been difficulties in the marriage from about 1984 and eventually, on 18 July 1994, the petitioner left Malta with Alison. She had a return air ticket and arrangements had been made for the respondent to visit her and Alison in Scotland. However, on 3 August 1994 the petitioner raised these proceedings, in which she sought custody of Alison and interdict against the respondent removing Alison from her, and obtained interim custody and interdict by an interlocutor dated 4 August 1994. The respondent lodged answers in which he sought custody of Alison and also sought an order for access. There were a number of hearings concerned with the question of interim access and some such access did take place but under difficulties. By an interlocutor dated 13 July 1995, a record was allowed to be made up and proof was allowed. The proof eventually took place, in circumstances which will require to be examined in more detail later, in February 1996 and the interlocutor reclaimed against was granted on 15 March 1996, following consideration of the proof.

While these proceedings were in progress in Scotland, there were also proceedings in Malta. The respondent raised the Maltese proceedings, in which he sought custody of Alison, in about the autumn of 1994, after it had become clear that there was a real conflict. The petitioner was represented in the proceedings by Maltese lawyers, and took part in them to the extent of challenging the jurisdiction of the Maltese court, but no further. The respondent gave evidence at a hearing before a judge of first instance, and affidavits in support of his case were also lodged. Judgment, at first instance, was given on 21 April 1995. The Maltese court held that it had jurisdiction to deal with custody and thereafter examined the merits of the case and decided that it was in the best interests of Alison to be in her father's custody. An order, including an order for delivery of Alison to the respondent within 15 days, was made accordingly. The petitioner appealed against that decision and a hearing on the appeal was held in the autumn of 1995. The petitioner's submissions were again confined to the question of jurisdiction. Some delay in giving judgment occurred, because one of the judges in Malta was ill, and the decision was not given until 31 January 1996. By that decision, the appeal court affirmed the decision of the court of first instance that the Maltese court had jurisdiction. The appeal court also, as the Lord Ordinary finds, re-examined the whole question of the proper care and custody of Alison and concluded that the judgment on the merits should also be affirmed. It is clear from the findings of the Lord Ordinary that the decisions in regard to custody at first instance and on appeal were not mere formalities, even though the petitioner did not contest the merits of the question whether Alison should be in the custody of the respondent.

The interlocutors and minutes of proceedings in this case record a considerable number of disputes and decisions in regard to interim access by the respondent to Alison. On 7 February 1995, an order was made for a report by a member of the bar into the facts and circumstances relating to interim access arrangements. A very full report, dated 25 June 1995, was produced which, in broad terms, recommended that there should be interim access although recognising that there were difficulties to be overcome. Notwithstanding these recommendations, there were further contested motions for interim access and, in particular, motions on this issue were heard on 8 December 1995 and 26 January 1996. On 16 January 1996, the Lord Ordinary, at a by order roll hearing, allowed parties to further adjust the petition and answers until the diet of proof and further appointed the cause to be put out by order on 2 February 1996 ‘in order that various issues may be canvassed in respect of the impending decision awaited by parties in the Maltese action’.

On 2 February 1996, the interlocutor records, inter alia:‘It was agreed that the proof on 6 February would be a preliminary proof confined to the issue of jurisdiction, forum conveniensand related issues.’

Extensive adjustments did in fact take place up to the day before the commencement of the proof. The principal effect of these adjustments was to introduce a statement and answer dealing with the final decision of the appeal court in Malta. In addition, the respondent stated six new pleas-in-law, namely, a plea to the jurisdiction of the Court of Session; two pleas directed to the issue of forum non conveniens; a plea that the matter of custody having been determined in Malta the petition should be dismissed; a plea to the effect that since the order of the court of appeal in Malta was entitled to be recognised in Scotland, by virtue of sec 26 of the Family Law Act 1986, the interim orders for custody and interdict pronounced in this cause were of no effect, in terms of sec 15(1) of that Act; and a plea in the following terms: ‘6. The existing orders for custody and interdict pronounced in this court having ceased to have effect in terms of sec 15(1) of the Family Law Act 1986, the court has no power to make further provision for custody of the child of the parties other than by the making of orders for her delivery or for the enforcement of the order of the court of Malta.’

There was however, at that stage, no alteration of the respondent's conclusion for custody of Alison, which only sought custody and did not expressly seek any ancillary order, such as an order for delivery.

It is obvious that the fact that the decision of the Maltese court only became available such a short time before the proof created substantial difficulties for the parties in that it obliged them to consider and incorporate into these proceedings issues which had not previously been focused in this case. The parties were commendably anxious not to lose the benefit of the diet of proof which had been assigned for this case. Unfortunately, however, the effect of what had been done was to leave some obscurity as to the precise scope of the proof when it took place. This problem was immediately appreciated by the Lord Ordinary, when the proof commenced, and he insisted that parties should define what the scope of the proof was to be. This they did by including an additional paragraph in a joint minute of agreement which had already been drafted to deal with a number of issues arising in the proof. The paragraph in question reads: ‘That the preliminary proof held on 6 February 1996 and subsequent days is confined to the respondent's first to sixth pleas-in-law and matters arising therefrom.’

The proof then proceeded and the Lord Ordinary heard evidence from the petitioner, the respondent and a number of witnesses called on each side. He also had before him some affidavit evidence. In his opinion, the Lord Ordinary sets out very fully the evidence led before him and discusses it in detail. In the debate before us, there was no challenge to any part of the Lord Ordinary's judgment in respect of the evidence which he heard, and it is therefore not necessary to do more than indicate very briefly the conclusions at which he arrived. He formed a very poor impression of the petitioner. He said that it became obvious to him, as the evidence emerged, that she had formed a very negative and destructive attitude towards the relationship between Alison and the respondent, and that she had attempted to eliminate the respondent from Alison's life, and had created, without real cause, great difficulties in relation to the respondent enjoying access to her. He also held that in a number of respects the petitioner's evidence was unreliable. On the other hand, he formed the impression that the respondent was a credible and reliable witness, and that he was deeply hurt by the situation in which he found himself. The Lord Ordinary concluded that in the event of Alison being returned to Malta she would properly be cared for by the respondent and other members of his family who were willing to assist in the task. The Lord Ordinary was also impressed by evidence given by the respondent's father and by an independent witness, Anthony Mallia, who described the relationship between Alison and her father as a happy and normal one while Alison lived in Malta.

In the course of the argument before the Lord Ordinary, there was a full citation of relevant statutory provisions and authorities, and a number of issues were discussed. Again, however, it is not necessary to do more than to indicate the conclusions at which the Lord Ordinary arrived in relation to matters which were not subject to challenge before us. On behalf of the respondent, it was recognised that, since a final decision had been given in the Maltese proceedings, the pleas relating to forum non conveniens were no longer apt. So far as jurisdiction was concerned, the Lord Ordinary held that, at the time of commencement of the present proceedings, Alison was habitually resident in Malta and continued to be so resident by virtue of the reasoning of the court in Dickson v Dickson. He further held that the court in Scotland had jurisdiction under sec 10 of the Family Law Act 1986 in view of the fact that Alison was present in Scotland and was not habitually resident in any part of the United Kingdom. The Lord Ordinary then considered sec 26 of the 1986 Act, which provides for the recognition of orders for custody made outside the United Kingdom where such orders have been made in the country where the child was habitually resident, and held that, in terms of that section, the Maltese decisions fell to be recognised in Scotland. He then went on to deal with an argument advanced on behalf of the respondent with reference to sec 15 of the 1986 Act to the effect that, following the decision of the Maltese court, the earlier decisions of the court in Scotland were superseded and that the court could no longer have jurisdiction to make an order for custody. This argument was rejected by the Lord Ordinary who said: ‘Having reached the foregoing conclusions, the position with which I conceive that I am now dealing is one in which the Maltese courts have pronounced orders which are to be recognised in Scotland in terms of sec 26 of the Act of 1986, yet this court possesses a jurisdiction to make a Part I order in terms of sec 10 of that Act.’

He then considered the effect of sec 14 of the Act of 1986 which gives the court a discretion to refuse to entertain an application for a Part I order where the matter in question has already been determined in other proceedings. He referred to a number of authorities both in Scotland and in England giving guidance as to the exercise of that discretion. Towards the end of that passage in his opinion, he cited the decision of the First Division in Woodcock v Woodcockwhere the court stated: ‘For future guidance we express the opinion that, while the Act has laid down the procedure for enforcement of custody orders made by a foreign court, it has not elided the limited protective jurisdiction of the Court of Session to refuse to give effect to the custody order of a foreign court (even if it is a decree in rem which the English order in this case is not) which the Court of Session may always exercise if it is satisfied that enforcement of the foreign decree would result in physical or moral injury to the child.’

It was not disputed that the Lord Ordinary was correct in taking the view that he was entitled to exercise a limited protective discretion although, as will be seen later, there may be some scope for reconsideration of the precise terms in which the test to be applied is stated. Having considered the whole circumstances, the Lord Ordinary reached the conclusion that there was nothing about the case which would suggest that the limited protective jurisdiction of the court should be exercised so as to refuse to give effect to the Maltese decisions and, in consequence, he made the order for delivery which is the subject of this reclaiming motion.

It will be necessary to revert in more detail to the circumstances which the Lord Ordinary took into account in arriving at that view, but, before doing so, it is necessary to explain how the dispute which is really central to this reclaiming motion arose. We have already explained that, at the outset of the proof, the respondent's conclusion sought only custody of the child. At the conclusion of the evidence, counsel for the petitioner addressed the court. Thereafter, when counsel for the respondent came to address the court, he moved the Lord Ordinary to permit the conclusion to be amended by adding at the end of it the words: ‘and for delivery to the respondent, within such period and subject to such conditions, if any, as the court may appoint’.

The Lord Ordinary explains that counsel for the respondent indicated that he considered this amendment necessary to put beyond any doubt the power of the court to make an order in the respondent's favour for delivery of the child. The motion was opposed by counsel for the petitioner who argued that if he had considered that an order for delivery could be made in the present proceedings as they stood, he would have led further evidence. The Lord Ordinary postponed consideration of the amendment until after counsel for the respondent had completed his submissions. He then heard counsel for the petitioner, who maintained his opposition to the amendment and then again heard counsel for the respondent who, this time, submitted that the terms of the respondent's sixth plea-in-law made it clear that delivery was in issue in the limited proof, that all that had happened was that the petitioner's advisers had misunderstood the scope of the proof and that notice of what had been involved in the proof had been given to the petitioner in the respondent's third answer. In giving his decision, the Lord Ordinary dealt with the question of the amendment by holding that the respondent's motion should be granted although he took the view that it might be unnecessary. He continued: ‘According to my understanding, it is common practice for the court to entertain and grant motions for the delivery of a child to a party to legal proceedings even though there is no specific conclusion for such an order. For example, the court will commonly make such an order upon the motion of a party to whom custody has been awarded and who has experienced difficulty in obtaining control of the child concerned. I consider that no prejudice can be caused to the petitioner by the allowance of the respondent's motion for these reasons. In the first place, if I am correct in thinking that orders for delivery are commonly made in cases where custody is in issue, without there being a specific conclusion for such an order, then it follows that the petitioner ought reasonably to have contemplated that such an order might be sought in the present proceedings. In the second place, it appears to me that certain features of the respondent's pleadings, as they already stand, give notice to the petitioner that delivery of the child was in issue. In that connection I make reference to the last sentence in ans 3 for the respondent and also to the terms of plea-in-law 6 for the respondent, which specifically refers to delivery. If, therefore, in the conduct of the proof which I have heard, decisions were taken not to lead evidence which might have been led, had it been understood that delivery was in question, in my opinion, that state of affairs must be attributed to a misunderstanding on the part of the petitioner, or her advisers, as to what was truly in issue in these proceedings. For that, in my opinion, the respondent cannot be held responsible.’

In the result, therefore, the Lord Ordinary held that he was in a position to consider whether or not delivery should be ordered. As we have already explained, the approach which he took, in line with previous authority, was to ask whether the enforcement of the Maltese decree would result in physical or moral injury to Alison. When he came to consider that question, he referred to the conclusions on the evidence which he had already explained and continued: ‘However, there are two further sources of material which it appears to me appropriate to consider at this stage. The first of these is the report by Dr A Sneddon dated 13 June 1995 No 16/2 of process. The second is the report of Miss Joughin, advocate, ordered by the court, dated 25 June 1995, No 15 of process. As I read the former document, the opinion of the author was that the symptoms which Alison was then displaying were largely attributable to the stresses associated with the marital separation and subsequent disputes over access and custody. Dr Sneddon opined that it appeared that Alison was developing increasingly wild fantasies about what her father might be like. She considered that lack of contact with her father would only increase this tendency and create difficulties for Alison in developing appropriately emotionally and in relating to others. The doctor's recommendation was that Alison should remain resident with her mother, but should have regular access with her father. While I immediately recognise that this report is inconsistent with the view that Alison should be returned to the custody of her father, I take comfort from the fact that, if that course is to be taken, it is very likely that the immediate cause of Alison's stress will be removed, that is to say the acrimonious relationship which has existed between the petitioner and the respondent since the separation, which has plainly had an impact upon her in the context of access. If Alison is returned to Malta, it appears to me that there would be every opportunity for her to develop a settled life there in favourable circumstances. In any event, I do not consider that there is anything in this report which would force me to conclude that the return of Alison to Malta would result in her physical or moral injury.’

The Lord Ordinary went on to refer to Miss Joughin's report which, in his view, confirmed his opinion that the petitioner had set out to try to exclude the respondent from Alison's life. He therefore decided to refuse the petitioner's application and give effect to the Maltese decision by making an order for delivery. He recognised, once again, that in doing so there might be some distress and upset as far as Alison was concerned but said that he was not persuaded that it would assume such great proportions as to constitute a reason for not taking that course.

The submissions for the petitioner in the reclaiming motion were put forward under two heads namely that the Lord Ordinary had erred in allowing the amendment: and that he had erred in not allowing proof on the question of custody at large. Although, however, these were initially stated as separate submissions it became clear, in our view, in the course of argument, that they were interrelated and that the essential issue in this reclaiming motion concerns the need for and the effect of the amendment, in the context of the situation as it was understood to be by the parties at the time of the proof, and the consequences of the apparent misunderstanding between the parties as to the proper scope of the proof. In so far, therefore, as there were separate arguments advanced under the second head of the appeal, they can in our opinion be dealt with quite briefly. It was submitted that Alison had been in the United Kingdom for 18 months and that the Maltese decision related to a period when she was that much younger and that the information before the Maltese court related to the earlier situation in which the petitioner and the respondent were living together in family. Added to that, although the respondent had been examined before the Maltese court, the petitioner, on legal advice, had not presented any case on the merits. Account had also not been taken of the fact that the petitioner had been the child's sole career throughout her life and she had not been employed outside the family home either in Malta or in Scotland. The Scottish court had jurisdiction, in terms of sec 10 of the 1986 Act, to consider the whole matter of custody of new and the Lord Ordinary should have exercised his discretion to do so. It was further submitted that the test applied by the Lord Ordinary, that of the likelihood of physical or moral injury, was too narrow in the light of modern law and policy in relation to child custody cases. The necessity for rephrasing or reconsideration of the test of a risk of physical or moral injury was, to an extent at least, accepted by counsel for the respondent but the respondent's position was that the Lord Ordinary had fully considered the facts, that the Maltese court decision was one which had been reached on the basis of the best interests of the child and that, having regard to the Lord Ordinary's conclusions on the facts, there could be no question of any need for the Scottish court to reconsider the entire question of custody. As we have indicated already, we shall have something to say, in due course, about the test to be applied in exercising the discretion under sec 14 of the 1986 Act. At this stage, however, we would say that in the light of the careful consideration which the Lord Ordinary has given to the evidence and the clear findings he has made upon it, the argument that he erred in failing to allow a comprehensive proof on the whole issue of custody of new is entirely unacceptable. This is not a case to which either the Hague Convention on International Child Abduction or the European Convention on the Recognition and Enforcement of Decisions Concerning Children applies; but the authorities to which the Lord Ordinary has referred clearly establish that, even on a common law basis, where the court of the habitual residence of a child has reached a properly based decision on the footing of the best interests of the child, the Scottish court should exercise only the limited protective jurisdiction along the lines indicated by the Lord Ordinary, and that however the appropriate test is defined, it would certainly not be appropriate for the Scottish courts, in the circumstances of this case, to embark on a complete reconsideration of the question of custody. Accordingly, in our opinion, the question in the present appeal revolves around the issues of the allowance of the amendment and the scope of the proof.

In presenting the appeal under the first head, counsel for the petitioner narrated how, from her point of view, the problem had arisen. The petitioner and her advisers had been proceeding on the view that, if it were held that the Scottish court had jurisdiction, the court would then have to investigate the whole issue of custody. There might be a difference of view between the petitioner's and the respondent's counsel, in particular with regard to a distinction between the existence and the exercise of the jurisdiction. The view of the respondent had been that the expression ‘related issues’ in the joint minute included the exercise of the jurisdiction and therefore that all evidence relevant to such exercise should have been led. However the view of the petitioner had been that there would have to be some hearing on the effects on the child, and on the question of custody, and that in any event since the evidence before the Lord Ordinary included Dr Sneddon's expert report it had been considered that a hearing would be necessary once jurisdiction had been established. The amendment had been opposed on the ground of prejudice because if immediate delivery had properly been in issue the petitioner's counsel would have led additional evidence including that of Dr Sneddon. The amendment had been allowed only when the opinion of the Lord Ordinary was issued: it had not been dealt with during the course of proof. It was not disputed that the court had an inherent power to make orders to enforce its own decrees but in this case the decree was a Maltese one and in fairness there should have been a conclusion for delivery from the start of the proof in order to show that immediate delivery was being sought. The part of the pleadings to which the Lord Ordinary had referred had not given sufficient notice of that matter. The terms of the joint minute were not ideal and there might have been some confusion about them but there had been an agreement to limit the scope of the proof on the Friday afternoon before the proof began and it had only been in the previous week that the appeal decision issued in Malta had become available. The parties had used the weekend before the start of the proof to adjust in the light of that decision. There might have been fault on the part of those acting for the petitioner but it had not in fact been contemplated that a delivery order might be sought and made and that had been the position right until the commencement of the respondent's submissions on the third day of the proof. Again, the sixth plea-in-law might be regarded only as hinting at the question of delivery and did not constitute a fair notice that the court would be asked actually to grant delivery. The overriding test was what was in the best interests of the child and however regrettable the misunderstanding might have been the matter should have been fully dealt with in the light of that test. In consequence, if the court was not prepared to allow a hearing at large on the question of custody, there should at least be a hearing on the question whether there would be injury to the child if the Maltese decision were enforced and, in any event, on the question what steps should be taken to prevent injury to the child if the Maltese decision were to be enforced. Counsel accepted that when the matter of the amendment was under consideration he had not specifically asked for an opportunity to answer the amendment and had not specifically said that if the amendment was to be allowed he would wish to have a chance to lead additional evidence.

Counsel for the respondent submitted that when the Maltese decision became available it was apparent that there was a difficulty in that neither side had taken account of it in their pleadings and there was as a result an agreement to adjust the pleadings so far as necessary to take account of that decision right up to the date of the proof, in order not to lose the benefit of the diet. The respondent's counsel had taken the reference to ‘matters arising therefrom’ as covering the consequences of the first six pleas-in-law, which were the subject of the proof, and therefore as including the question of delivery, although he accepted a share of fault in not spelling out more clearly what was involved. The petitioner had not, in any event, taken the position that the issue was one of pure law, as it would have been if the issue were confined to the definition of the extent of the jurisdiction of the Scottish court, since she had led evidence from herself and her brother and sister which could be relevant only to a contention that the child should not be delivered. Otherwise the issues could have been dealt with by a procedure roll discussion. The course taken by the petitioner could have been expected to lead to the conclusion that the Lord Ordinary would hold that the Maltese court decision should be recognised and that as a result the earlier Scots orders would lose effect and the court should hold that it had no power to deal with the matter further except in regard to delivery. The respondent's submission had been that the Maltese decree should be recognised with the result that it would be given effect to unless the petitioner could show, the onusbeing on her, that there would be serious moral or physical harm to the child if the decree was given effect to. The evidence of the petitioner and her brother and sister had been that the only sensible thing was for Alison to remain in Scotland since the respondent was unstable and violent and one of them had said that Malta was a barbarous country. That line of evidence had simply not been accepted. The question then was what should be done in the light of the fact that a suggestion had been made that it would be disastrous for the child to go ahead with the delivery. The respondent had conceded, without being obliged to do so, that the report of Dr Sneddon, which was not strictly evidence but was before the court, could be looked at, as could the report of Miss Joughin. It had never been suggested on behalf of the petitioner that anything useful could be done by way of answers to improve her pleadings. The only thing that had been said was that the amendment should not be granted because of possibility of prejudice but the only evidence which had been suggested might be relevant was that of Dr Sneddon and her report had been, by agreement, looked at. The petitioner's argument was thus founded on prejudice but if account was taken of what was actually before the Lord Ordinary, there was no prejudice at all. Counsel went on to criticise the basis upon which Dr Sneddon's opinions had been expressed, on the line that Dr Sneddon had accepted from the petitioner accounts of matters which the Lord Ordinary had held to be unfounded. It was of great importance, and was a matter which bore very directly upon the interests and welfare of the child, that there should not be undue delay in the reaching of a decision on whether or not she should be returned. It was accepted that further steps might be necessary to deal with the question of the manner in which an order for delivery should be carried out in view of the fact that distress had been caused to the child but the respondent's attitude was that such distress was essentially a result of the petitioner's manipulation of the child. In all these circumstances there should not be a general proof either on the question whether delivery should be ordered at all or on the question of the manner in which delivery should be carried out. To allow a general proof would postpone the decision and would itself be harmful to the child as well as being unfair to the respondent.

We should say at once that we have very great sympathy with the position of the respondent. It is evident that the question of the best interests of the child has been fully considered by the court in Malta which has reached a clear conclusion upon it. It is also evident that the evidence led by the petitioner has been largely rejected by the Lord Ordinary, who has held that the respondent is in every respect a fit and proper person to have the custody of his daughter. We have also considerable sympathy with the position of the Lord Ordinary. He was placed in difficulty by the manner in which the issue was raised before him, in spite of the steps which he had earlier taken to attempt to clarify what the issue was to be. In the end, however, we have come to the conclusion that, since the overriding consideration in any such case is that of the welfare of the child, and since there may be evidence which could and should have been put before the court to enable that issue to be properly considered, in the peculiar circumstances of this case some steps should be taken to allow the court to consider that evidence.

In the normal case, of course, there would be no question, even in a matter affecting the welfare of a child, of allowing a party a second opportunity to lead evidence which he had refrained from leading in the knowledge of the nature of the issue with which a proof was concerned. Equally, there could be no question of allowing a party who had failed in one approach to the case to try a different approach on the excuse of some misunderstanding or alleged misunderstanding. To permit proceedings to be prolonged in such a way would, in itself, carry a serious risk of harm to the child affected by delaying a proper decision on the course which is in that child's best interests. In the peculiar circumstances of this case, however, there may have been some genuine and comprehensible misunderstanding as to the scope of the proof. Without reflecting adversely on anyone involved, it seems to us to be essential that some consideration should be given to the possibility that there may be other relevant evidence which should have been taken into account.

We do not, however, think that these considerations require us, or the Lord Ordinary to reopen the proof without restriction. As a result, it is necessary to find some means by which the petitioner can be permitted to place before the court the evidence which would have been led if it had been appreciated that delivery of Alison was directly in issue. The only such evidence to which counsel for the petitioner referred was that of Dr Sneddon. Since parties had, we assume, prepared their evidence for the proof on the understanding that it was to be a full-scale proof on custody, until the final decision of the Maltese court became available, we think that we can assume also that they, and in particular the petitioner, have had the opportunity to decide what evidence should have been available. There is therefore no need to allow any lengthy period for the finding or preparation of additional evidence: and it is clear that if we were to allow any such period, that would be likely to be prejudicial to the child as well as unfair to the respondent.

There is also another matter which requires to be dealt with, namely, the question of arrangements to be made for the delivery of Alison to the respondent, if an order for delivery is made. As we have mentioned, there have been repeated disputes over access arrangements. The petitioner's position is that difficulties have arisen because Alison is afraid of the respondent and unwilling to go: the respondent maintains that any such feeling on Alison's part is the result of the petitioner working on her. In the light of the Lord Ordinary's findings, there must be reason to sympathise with the respondent's position, but, it is clear that Alison has in fact been subjected to considerable distress, whatever the reason for it may be. Further attempts at making access arrangements after the decision of the Lord Ordinary ran into similar difficulties. They led to a motion on behalf of the respondent to ordain the petitioner and her sister to appear at the bar of the court to explain their failure to obtemper orders for access. That motion has been before the Second Division on several occasions, and it was continued to be before us at the same time as this reclaiming motion. The respondent's attitude was that he had no interest in pressing the motion if the question of custody was satisfactorily resolved; and he was content that the motion be further continued, which we shall do. The circumstances surrounding the alleged contempt, however, emphasised the need to consider what arrangements are to be made for delivery, if it is to take place.

In these unusual circumstances, the course on which we have decided is to recall the interlocutor of the Lord Ordinary so far as concerned with delivery of Alison and with the respondent's sixth plea-in-law, which seems to have been repelled per incuriam. We shall uphold that plea which, as we understand it, reflects the Lord Ordinary's conclusion. We shall then remit to the reporter who has already considered the case to enquire into the circumstances and report to the Lord Ordinary both with regard to any evidence which parties may wish to place before him affecting the issue of the exercise of the protective jurisdiction and with regard to the arrangements, if appropriate, for delivery of Alison. We shall also remit the case to the Lord Ordinary to determine in the light of the report and any submissions of parties in the exercise of his discretion what further evidence to hear and to determine whether, and if so under what arrangements, delivery should be made. We shall appoint the case to be put out by order before the Lord Ordinary on the earliest appropriate date.

The last matter with which we have to deal concerns the test to be applied in the exercise of the protective jurisdiction. The phrase ‘physical or moral injury to the child’ used in Woodcock v Woodcock is taken from opinions expressed in older cases, and, as we think parties agreed, it may not properly reflect a modern approach to the determination of what is in the best interest of the child. It may be that the judges who first used the term ‘moral injury’ would have understood it to cover some, at least, of what would now be called psychological harm. It would however clearly be preferable to re-express the test in terms which reflect a more modern approach to such cases, such as is found in, for example, art 13 of the Hague Convention. We do not think that it would necessarily be right to take a form of wording devised for an international convention and attempt to apply it directly in the exercise of a common law jurisdiction. In any event, we did not hear detailed argument on the question how the test should be expressed or applied. We think, therefore, that it is sufficient for the present to say that the considerations to which the court should have regard in any further case involving the exercise of the common law protective jurisdiction, which was explained in Woodcock, include the risks of exposing the child to any form of physical or psychological harm.