Scottish Court of Session Decisions

9 October 2000

[1] BM is the nine year old daughter of the petitioner and EM. Her parents were married on 30 April 1988 at Edmonton, Alberta and BM was born there on 7 July 1991. When the marriage broke down and her parents were divorced in Edmonton on 8 June 1998, custody of BM was awarded to her parents jointly on the basis that she would reside with each on alternate weeks. The court order of 8 June 1998 provided specifically that neither parent would establish a residence with BM outwith Edmonton or the surrounding area without the consent of the other or further order of the court. Neither has occurred. BM's habitual residence thus was, and remains, the Province of Alberta in Canada.

[2] In July BM's mother brought her to Scotland, ostensibly on holiday. On 7 July 2000 she and the petitioner had entered into an agreement that BM could go to Scotland with her for a summer holiday from July 9 to August 20 when she would return to spend the balance of the summer holidays with the petitioner. On 18 August he received a letter from EM intimating that she did not intend to return BM to Alberta. Thereafter she kept BM in Scotland and thus wrongfully retained her here in breach of the petitioner's right of custody. On 22 August, on the petitioner's application, the Court of Queen's Bench of Alberta found the petitioner entitled to sole custody of BM. By this petition he seeks to secure the prompt return of BM to the Province of Alberta under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

[3] Shortly after her return to Scotland BM's mother established the home of her sister, LM, in Falkirk, as her official address for communications. She also resided there with BM for a time. The petition was served upon her by a messenger-at-arms handing a copy to her sister. By that date she and BM were living with other relatives, Mr and Mrs AM in Ayr, and BM was attending a school there. That was to be their home for the foreseeable future. LM met EM on 24 September and gave her the copy petition. On the following day EM took legal advice and then abruptly left her home in Ayr with BM. On 27 September she telephoned LM and left a telephone number in Dublin for her to call back. On 4 October she again telephoned LM and in the course of the conversation mentioned that she was "running short of francs" from which LM deduced that she might be in France. That fitted to some extent with an indication she had given to LM before leaving Ayr that she might go to Southern Spain. It also fitted with her indication on the telephone that she was feeling exhausted and intended to give her daughter a few days in the sun, as she had promised her, before turning home.

[4] When the petition first came before me at the hearing on 3 October, I was invited by Mr Sheldon for the petitioner to adjourn the hearing and to exercise the Court's power under section 24A of the Child Abduction and Custody Act 1985 to order a number of people who the Court had reason to believe to be in possession of information relevant to the location of BM to appear and disclose that information. I acceded to that proposal and adjourned the hearing until 5 October when I made enquiry of LM, AM and QM, a solicitor consulted by EM, whether they could shed further light on the present whereabouts of BM and her mother. Some of the information provided by them is reflected in the foregoing narrative. Mr Sheldon then invited me to grant the prayer of the petition and make such orders as I considered appropriate to ensure the safe return of BM to Alberta. Since it had emerged in the course of the enquiries in court that morning that EM has at least one bank account with the Bank of Scotland, Mr Sheldon invited me to exercise my power under section 24A again by ordering the Bank to disclose any information in its possession relevant to the location of BM. If I was not prepared to grant the prayer of the petition, Mr Sheldon invited me to make an interim order in terms of section 5 of the 1985 Act to secure BM's welfare and prevent changes in her circumstances pending determination of the petition, and submitted that the appropriate order was that she should reside with the petitioner.

[5] The first thing to be determined is whether it is appropriate to grant the prayer of the petition. If I were to decide not to grant the prayer, it would, in my opinion, be premature to make interim arrangements for BM's care here pending determination of the petition. The petitioner is residing in a guest house in Edinburgh. He has family in the Borders where arrangements for looking after BM could be made. However, no detailed proposals were made and I had the impression that the possible arrangements had not been thought through. The appropriate time to take a decision on such interim arrangements would be immediately prior to putting them into effect in the light of consideration of detailed contemporary proposals. In the event, the matter does not arise since I have decided to grant the prayer of the petition. That the retention of BM in Scotland was wrongful is plain. The home where she lived on alternate weeks is immediately available for her return. Notice of the petition was given to EM while she was in Scotland. She was aware of the first hearing of the case on 3 October and neither lodged answers nor appeared to answer the petition. Instead, she went on the run. Members of her family have urged her to give up what is plainly a pointless and misguided attempt to thwart the combined efforts of BM's father and the responsible authorities in Alberta and Scotland to ensure that any decision on the question whether the arrangements for BM's custody should change is made in a properly regulated and carefully considered way in her best interests. EM is already feeling the strain of her efforts and is likely to return to Scotland fairly soon. The present absence of BM from Scotland does not in any way affect the power of the Court to pronounce an order for her return to Alberta, which I hope will be given effect to immediately on her return, as occurred in A v A (Abduction: Jurisdiction) [1995] 1 F.L.R. 341. In all these circumstances it is in keeping with the objective of the Convention, which is to secure the prompt return of a child to her habitual residence and thus protect her from the obvious risk of harm to which she is exposed when taken on the run by a parent, to order BM's immediate return to the Province of Alberta in Canada. To give effect to that determination I shall order EM to forthwith deliver BM to the petitioner to enable him to return to Alberta with BM immediately. I shall also grant warrant to messengers-at-arms to search for BM and take possession of her and deliver her to the petitioner should she not be so delivered by EM.

[6] I am not convinced that any useful purpose would be achieved by ordering the Bank of Scotland to disclose to the Court relevant information about the location of BM. While there may be evidence of Bank transactions somewhere or another, I suspect that when that information reaches the petitioner it will be largely historical and unlikely to be of material assistance in tracing BM.

[7] I was also asked by Mr Sheldon to make a further order in terms of section 24A of the 1985 Act in respect of the persons who did appear before me, the order this time being to disclose any relevant information that may come into their possession. I was not addressed in any detail on the width of section 24A(1), but at first blush it does seem confined to persons who the Court has reason to believe actually have relevant information in their possession. It does not appear to apply to persons who may come into possession of relevant information in the future. I accordingly do not consider it appropriate on the material presently before me to pronounce the order sought in relation to those persons of whom I have already made enquiry.

[8] Finally, I was asked to pronounce an order authorising the media to identify BM in reports of the proceedings. I was advised by Mr Sheldon that the petitioner would make use of such authority only if he considered that that course would assist in the effort to find her. My understanding of the terms of section 46 of the Children and Young Persons (Scotland) Act 1937 is that it gives the court power to make an order preventing the identification of a child in any report of proceedings. My attention was not drawn to any other provision governing the reporting of these proceedings. That being so, it is not for the court to make a positive order about publication. I accordingly make none. On the other hand I think it appropriate to note that I see force in the suggestion that there may be circumstances in this case in which the identification of BM in a report in the media might help in the effort to trace her. Having said that, it is also appropriate that I should note the well-established and highly regarded practice of the press in Scotland to refrain from identifying children who are the subject of court proceedings unless it is in the interest of the child, or on occasions in the public interest, to do so.