Scottish Court of Session Decisions

J, Re [2002] ScotCS 146 (23rd May, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY PATON in the cause J Petitioner; for   An order under the Child Abduction and Custody Act   ________________

Petitioner: P.S. Hodge, Advocate; Brodies, W.S.

Respondent: J. Brown, Advocate; Morton Fraser

23 May 2002

Introduction

1. The petitioner was born on 13 December 1976. He is Canadian, and works as a machinist in a factory in Stratford, Ontario, Canada. The respondent was born on 13 December 1970, in Canada, of Scottish parents, her parents having emigrated to Canada in 1967. She was brought up in Canada, but spent many holidays in Scotland. She has dual citizenship, both Canadian and Scottish. She has an honours degree in environmental science from the University of Waterloo in Ontario. She also has flying qualifications, and had hoped to be a pilot. She currently works as an administrative assistant with the Scottish Executive in Edinburgh.
2. The parties met in Stratford, Ontario, Canada, in 1996 when they were working for the same company. In June 1996 they went out together. The respondent became pregnant. The parties' relationship did not thereafter become settled. It appears from the affidavits and productions that the parties lived together for three brief periods only, namely October 1996 to January 1997, two weeks in June 1997, and October 1997 to January or February 1998. They then separated. They were accordingly cohabitees for three brief periods, and were never married.
3. Their child C was born between periods of cohabitation, on 14 March 1997. The petitioner was present at the birth. He had contact with C during 1997, and was living in family with C during the period of cohabitation from October 1997 to January 1998.
4. Following the parties' separation in January 1998, there were difficulties about contact with C, and how C should be treated. Various court orders were sought and obtained. In particular, by order of the Provisional Division of the Ontario Court dated 24 November 1998, number 6/5 of process, the respondent was awarded residence, and the petitioner was awarded regular non-residential contact, with the prospect of residential contact following C's second birthday. The court ordered inter alia that:

"7. The mother shall not change the residence of the child except to accommodate her employment/training and only following 60 days written notice to the father or, provided the mother gives the father written confirmation from her employer that her employment can commence immediately, the 60 day notice period can be reduced. The parties shall diligently pursue arrangements for access by the father in the event of any change of residence restricting the arrangements set out herein. In no event shall the residence of the child be changed to a location outside Ontario without consent of the parties or further order of this court".

The court's order was a disappointment to the respondent. She had hoped to pursue her career in aviation, and therefore had hoped to be free to live outwith Ontario if necessary.

5. In March 1999 the respondent made a formal application to change C's name. His original surname, shown on his birth certificate number 6/3 of process, was "KJ". However the respondent referred to her son by the surname K, while the petitioner was teaching him that his surname was J. The respondent applied for a change of surname to "K". The petitioner did not oppose the application (per incuriam, as he explains in his affidavit number 15 of process). The change of name was allowed in June 1999.

Wrongful removal of child from Ontario, Canada, to Scotland

6. During January 1999 until June 1999, the respondent sent job applications to 23 airports and flying schools situated in Ontario. Her applications were unsuccessful. One offer of aviation-related employment from Winnipeg, Manitoba, could not be taken up because of the court order restricting her residence to Ontario.
7. Difficulties and disagreements over C's life and upbringing continued. The respondent found herself increasingly isolated, tied by child-care commitments, and lacking support from her parents (who were divorced; her mother also had a particularly demanding job). The respondent found that the only employment opportunities available to her and compatible with her child-care commitments were casual jobs such as waitressing.
8. In late 1999, the respondent re-applied to the Ontario Court seeking mobility rights - in other words, seeking the court's permission to take C to live outside Ontario. Some negotiations took place between the parties and their solicitors, including the respondent's formal Offer to Settle dated 23 December 1999 (number 7/16 of process). Agreement could not be reached. A trial on the respondent's application for mobility rights was set down for April or May 2000 (as detailed in lawyers' letters numbers 6/14 and 6/15 of process). However the respondent thought that the court was unlikely to grant her application. She felt angry and frustrated, because although she had put considerable time, money and effort into obtaining her flying qualifications, she felt that she was being prevented from using those qualifications by being restricted to residence in Ontario. The respondent was also struggling with ill-health (pneumonia in October 1999); full-time care of C, who appeared at that stage to be exhibiting hyperactive and disturbed behaviour; continuing disagreements with the petitioner; an isolated lifestyle in a high-rise block with few amenities for C; an apparent lack of support from her parents; and an inability to improve her circumstances by obtaining reasonably remunerated employment. The respondent felt stressed and depressed, and made a drastic decision to move.
9. The respondent was aware that the court order of 24 November 1998 permitted her to change C's residence within Ontario "to accommodate her employment/training". She was struck by the illogicality of a situation where she could legally live and work in a remote, arctic area of Ontario, presumably making arrangements for occasional contact between C and the petitioner, yet she could not legally live and work in a more accessible place which happened to be outside the Ontario jurisdiction. In pursuance of her decision to move, the respondent, in about February/March 2000, gave the petitioner false information, namely that she had been offered employment in a distant part of Ontario, called Thunder Bay. She told the petitioner that she had been offered a post as a cadet instructor at the "Thunder Bay Flight Centre". On 5 March 2000, the respondent handed the petitioner a copy of what appeared to be the second page of a letter from someone called Andy Cooke, number 6/10 of process. At the top of the page is a motif in the form of a jet and an airport runway. The second page reads:

"...You will be signing on with us from April 15 until August 15 to fill a cadet instructor position. As discussed, we have agreed to provide you with the opportunity of gaining some instructing experience before the cadets arrive. This will be as a walk-in or fill-in position.

Unfortunately, as many cadet instructor's hope [sic], this will not lead to a full-time position as we have our quota of full-time instructors. We will however be pleased to provide you with a reference for your time served with us.

Margot has sent out housing information and I trust you have received this. If you have any further queries please don't hesitate to contact us."

10. In fact the letter had been compiled by the respondent. It was false, as the Thunder Bay Flight Centre did not exist, and the respondent had not been offered any employment in Thunder Bay. Indeed at about that time, the respondent had submitted an application to the UK National Air Traffic Services, seeking training in the United Kingdom in air traffic control. She had shipped her car to the United Kingdom. The respondent's plan was apparently to move to Scotland, near her sister KS (who in 1998 had married a Scotsman and settled in Scotland), yet to allow the petitioner to continue thinking that she was living and working in Thunder Bay, Ontario.
11. The petitioner for his part was unhappy with the Thunder Bay proposals. He felt that he had been unfairly presented with a fait accompli, which would make continuing contact with C more difficult. Apparently it takes about twenty hours to travel from Stratford, Ontario, to Thunder Bay. The petitioner's solicitors wrote to the respondent's solicitors, requesting full proof of the employment offered and details of proposed contact with C.
12. Meantime the respondent and C left Canada. Unknown to the petitioner, they arrived in Scotland on 30 March 2000. They were collected at the airport by the respondent's sister KS and her friend ML. They were taken to KS's house in Edinburgh.
13. The respondent intended to maintain contact between C and the respondent by means of telephone calls - ostensibly from somewhere in Thunder Bay, Ontario, but in fact, unknown to the petitioner, from somewhere in Scotland. Contact would also be maintained by occasional visits, when the respondent took C back to Canada to see her parents and also the petitioner. If and when the respondent's pretence came to light, her hope was the C would be so well settled in Scotland that there would be a strong case for legitimisation of the status quo.
14. According to the respondent, a few telephone calls between C and the petitioner did in fact take place. However the respondent became nervous that C might say something which would reveal their whereabouts. Accordingly, the telephone calls stopped.
15. The petitioner then realised that the respondent had disappeared, with C. At the second hearing in the Court of Session, counsel for the respondent accepted that the removal of C from Ontario to Scotland had been a wrongful removal in terms of the Child Abduction and Custody Act 1985.

Events following the wrongful removal

16. (a) The petitioner in Canada: Counsel for the petitioner referred to an affidavit by the petitioner dated 19 April 2002, two affidavits by a Canadian regional police officer (Detective M) dated 14 February 2002 and 23 April 2002, certain productions, and a fax sent by the petitioner for the second day of the Court of Session hearing (Friday 3 May 2002).
17. On realising that the respondent had disappeared with C, the petitioner immediately consulted his solicitors. He also consulted the local police. He filed a missing person report. He may have tried to obtain information from the respondent's mother, but without success. Motions and affidavits filed with the Ontario Court in May 2000, numbers 6/16 and 6/17 of process, show that the petitioner was proceeding on the understanding that the respondent and C had disappeared somewhere in Thunder Bay. The court made various orders, including an order (number 6/26 of process) ordaining the respondent to provide the petitioner with her current address, telephone number and employer in Thunder Bay. The court deemed the respondent in contempt of court as a result of her failure to appear or to obey the court's orders. The trial on the issue of mobility rights, which had been set down for April 2000, was postponed to May and then to October 2000.
18. On 2 October 2000, after a court hearing, the Ontario Court formally refused the respondent's application for mobility rights. By letter dated 3 October 2000 number 6/22 of process, the petitioner's solicitors advised him as follows:

"Once we have the order issued by the court, we will forward a copy to you. This order may then be taken to the Regional Police and we believe that they will respond to your request to lay a criminal charge of quasi-abduction or breach of a court order. This will permit the police force to check for [the respondent's] whereabouts either in Canada or the UK."

The relevant court order was signed on 27 October 2000, number 6/28 of process.

19. On 22 October 2000 the petitioner attended Division 1 of the Waterloo Regional Police Service, Kitchener, Ontario, and asked Detective M to assist in tracing the respondent and C. Detective M contacted the passport office and the Royal Canadian Mounted Police in an attempt to discover whether the respondent and C had left the country. On 25 October 2000 Detective M interviewed the respondent's mother, who indicated that she had not had contact with her daughter for about six or seven weeks, but that the last time she had spoken to her daughter, she had been in Scotland. On 31 October 2000, Detective M contacted the respondent's general practitioner, who stated that he had seen neither the respondent nor C since 1 October 1998. On 11 December 2000, Detective M again spoke to the respondent's mother, and was advised that the respondent was in Scotland, where she had gone "in order to bring up her son properly". On 30 April 2001, Detective M contacted the Missing Children Registry of the Royal Canadian Mounted Police, and gave them information so that Interpol could be contacted in an attempt to find the respondent and C in Scotland. On 29 June 2001, a Canadian Justice of the Peace issued a warrant for the arrest of the respondent (number 6/6 of process).
20. In addition to instigating an official police search, the petitioner and his mother conducted some investigations of their own. For example the petitioner's mother posted a notice at her place of work, requesting volunteers to search the internet, to look for the respondent and C: number 6/12 of process. The petitioner and his mother contacted flying schools and aviation businesses in Scotland, making enquiries about the respondent. On 30 March 2001, the petitioner and his mother registered C's particulars on www.ChildCyberSearch, a website concerned with tracing missing children: number 6/11 of process.
21. By letter dated 28 June 2001, the Reciprocity Office of the Ministry of the Attorney General of Canada forwarded to Detective M a blank application form under the Hague Convention. It appears that Detective M took the view that it was necessary to have the precise address of the respondent and C before the Hague Convention application could be proceeded with. Accordingly, Detective M did not immediately send the application form to the petitioner. He seems to have filed it, and to have awaited news of the respondent's precise whereabouts. On 4 February 2002 Detective M was contacted by the Missing Children Registry, and advised that the respondent had been located in Scotland. Her application for employment with the Scottish Executive appeared to have brought her address to the attention of the appropriate authorities. Detective M then sent the blank Hague Convention application form to the petitioner, who duly completed it on 11 February 2002. Appropriate procedure then followed, leading to the hearings in the Court of Session. The first hearing took place on 2 April 2002. The second hearing took place on 2-3 May 2002.
22. The petitioner does not seek to separate C and the respondent. He does not seek residence, merely contact; but he wishes the Canadian courts to determine the question of C's residence, which will automatically affect the amount and type of contact which the petitioner can have with C.
23. (b) The respondent in Scotland: Events in Scotland following the respondent's arrival there on 30 March 2000 are described in affidavits by the respondent, her sister KS, KS's friend ML, the respondent's uncle and aunt Mr. and Mrs. S, neighbours ST and LG, a Depute Nursery Manager HI, a primary school teacher DM, an administrator in the Scottish Executive, and the respondent's solicitor SB. A child psychologist's opinion about C's close attachment to his mother, and the inadvisability of changing C's present circumstances and schooling, can be found in affidavit number 7/14 of process.
24. For their first six months in Scotland, the respondent and C lived with the respondent's sister KS. They then moved to accommodation in Newtongrange, Midlothian, where they lived for a further six months. In early 2001, the respondent obtained the tenancy of her present house in Edinburgh, in an apparently friendly, family-orientated street. The lease (number 7/18 of process) is renewable every six months. The respondent has recently renewed the lease for a further six months until 2 October 2002.
25. In February 2001, C began attending a local Edinburgh nursery. In September 2001 he began attending a local Edinburgh primary school. Some days he is collected from school by the respondent, other days by the nursery staff (to be subsequently collected from the nursery by the respondent after work). C spent a recent fortnight's school holiday attending the nursery each day. He enjoyed the two weeks.
26. C appears to have made friends, both at home and at school. He is making very good progress at school. He enjoys swimming, skating, football, baseball, golf, and roller-blading. He also enjoys local attractions such as Edinburgh Zoo, Deep Sea World, Butterfly World, and Dynamic Earth. The respondent not only has the support and companionship of her sister KS, but also a grandfather and grandmother at Tollcross, Edinburgh; an aunt at Balerno; an aunt and uncle at Milton Bridge; a cousin at Braco; and an aunt and uncle at Galashiels.
27. The respondent was unsuccessful in her initial application for UK air traffic control training. She was invited to re-apply. She did so, and was then accepted, but the college was in Bournemouth. By that time, C had become more settled in Scotland, and the respondent felt unable to accept the offer for Bournemouth. The respondent took some casual work in supermarkets, for example, Kwiksave. It was then suggested to her that in view of her child-care commitments, she might consider a change in career direction, and might try a government training scheme. She did so, and completed a course without difficulty.
28. In early 2002, the respondent applied for her present post at the Scottish Executive. She was accepted, and on 25 March 2002 began working there as an administrative assistant (lowest grade). Eight days later, on 2 April 2002, she was served with the present Hague Convention petition.
29. The respondent's appointment as an administrative assistant is initially for one year, but her line manager expects some degree of permanence, commenting that her work is good and that she has fitted in well: affidavit number 7/8 of process. The work schedule is flexible, and the respondent can take time off if C is ill. The respondent has recently applied for a Master of Science (non-attendance) degree at Napier University, which she feels will assist her career in the Scottish Executive.
30. The respondent has not taken C to Ontario for a visit, as she learned that the police were looking for her. She wanted to wait until she and C were firmly settled in Scotland before telling the petitioner of their whereabouts. However as she explains in her affidavit dated 29 April 2002 number 7/4 of process:

"44. It was never my intention to prevent contact between C and his father. If I am able to remain in Scotland, I would be willing to encourage telephone and letter contact between C and his father on a regular basis. I would also be prepared to buy a web camera so that C could communicate with his father by computer. He could also send regular e-mails. Before these proceedings were raised I met with my solicitor SB to discuss the possibility of returning to Canada to enable C to see his father. SB has been my solicitor since I first consulted her in June 2000 after I came to Scotland. SB was concerned that there might still be criminal charges outstanding against me, and that I could be arrested if I returned to Canada. She felt a return was still premature. Approximately 2 weeks after our meeting I was served with the present Petition. Recently I have been asked by [the petitioner's] lawyers if I would be prepared to allow telephone contact between C and his father now. Up until now I have only had a mobile telephone, but since receiving that request I have installed a land line and have confirmed via my solicitors that [the petitioner] could telephone C at any time. [The petitioner] telephoned C on Friday night and had a short conversation with him. I am willing to facilitate further telephone calls. I am also willing to facilitate contact in Scotland, if [the petitioner] wishes to come over here. I am also willing to go back to Canada and face whatever criminal charges may be outstanding against me and to allow contact to take place there."

31. The respondent's position is further clarified in her answers in the present proceedings, as follows:

"5. ... In the event that the court was minded not to order the return of the child to Canada the respondent would be prepared to facilitate direct contact between the child and the petitioner in Scotland and indirect contact by telephone. She would be prepared to purchase a webcam and facilitate regular contact between the petitioner and the child thereby. She would be prepared to take the child to Canada at regular intervals to see the petitioner ...".

32. The respondent's Scottish solicitor in her affidavit number 7/13 of process, confirms that the respondent consulted her in March 2002 wishing to take C to see his father:

"6. On 15 March 2002 [the respondent] made an appointment with me. She had now been in Scotland for approximately 2 years. She wanted to know whether it would be safe for her to go back to Canada for a visit. She indicated to me that she was anxious that C should have contact with his father. She told me that she would ideally like to go back to Canada in October 2002 for a visit. We discussed her situation and I gave [her] certain advice. I advised her to try to find out whether there were outstanding charges against her in Canada and the implications for her if she were to return there. She stressed that she was keen for her son to have contact with his father. I gave her advice on the Hague Convention and the question of "settlement". On 2 April 2002 [the respondent] advised me that she had been served with a petition under the Child Abduction and Custody Act."

Acquiescence and settlement: exceptions permitted by the Hague Convention

33. The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) as set out in Schedule I to the Child Abduction and Custody Act 1985 provides inter alia:

"Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment ...

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention ...

Article 18

The provisions if this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."

34. The present proceedings commenced at the date of the first hearing on 2 April 2002. C was wrongfully removed from Canada on 30 March 2000. Accordingly in terms of Article 12, "the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph".
35. Counsel were agreed that one issue to be determined was whether the respondent could rely upon the exception "that the child is now settled in its new environment" such that the petitioner's request for C's return to Canada should be refused. Counsel were further agreed that, in terms of Article 13(a), the court had to determine a separate, self-standing issue of possible acquiescence on the part of the petitioner to C's removal to Scotland. Counsel also agreed that if the respondent satisfied the court on either settlement or acquiescence, the court still had an overriding discretion in terms of Article 18.

Respondent's contentions: acquiescence and settlement

36. Acquiescence: Counsel for the respondent submitted that the petitioner must have known by October 2000 that C was in Scotland. The respondent had lived quite openly in Scotland. She had used her own name. She had made no attempt to conceal her whereabouts. She had made an application to the UK National Air Traffic Services. She had taken up employment in supermarkets. She had paid tax and national insurance contributions. She had claimed benefit. She had shipped over her car, with Canadian number plates. She had registered with a general practitioner.
37. Furthermore, on 25 October 2000, Detective M had spoken to the respondent's mother, and had been told that the last time she had spoken to the respondent some six or seven weeks earlier, the respondent had been in Scotland. The location "Scotland" was sufficient to invoke the Hague Convention: a more precise location was not required, as the Scottish authorities would assist in tracing the respondent. In any event, the petitioner was surely aware that the respondent's sister KS lived in Scotland; he was probably aware that she lived in Edinburgh.
38. Counsel further drew attention to the date upon which the petitioner had completed the application form under the Hague Convention (number 6/1 of process). He had completed the form on 11 February 2002, yet the formal letter number 6/23 of process sending the blank application form to Detective M had been dated 28 June 2001. If no good explanation was forthcoming in respect of the delay, the court should draw an inference adverse to the petitioner.
39. It was submitted that, overall, the affidavits and the productions tended to suggest little activity on the part of the petitioner in endeavouring to trace the respondent and C. At best there had been occasional or sporadic activity. The court was invited to draw an adverse inference and to conclude that the petitioner had acquiesced in C's being brought to Scotland. The case of Soucie v Soucie, 1995 S.C. 134 was referred to, only to be distinguished on its facts.
40. Settlement: Counsel for the respondent took the court through the affidavits which had been lodged on the respondent's behalf. These demonstrated that C was now happy and settled, whereas he had been unhappy and unsettled in Canada and initially on his arrival in Scotland. C now had friends, both at home and at school. He was doing well at school. Affidavits by the child psychologist and by KS, the respondent's sister (who had primary school teaching training) suggested that C would now be educationally out-of-step with Canadian primary schools, and would find it difficult to adjust if moved to Canada at this stage in his life. In Scotland, C had friendly, helpful neighbours, and an extended family who could help out if necessary. Under reference to Soucie v Soucie, 1995 S.C 134, and Perrin v Perrin, 1995 S.L.T. 81, the court was invited to conclude that C's needs outweighed the fundamental aim of the Hague Convention, and that C should be permitted to remain in Scotland in the happy, settled environment which was obviously proving so beneficial for him. He should not be up-rooted and sent to Canada, where the respondent had no job and little family support, and where she would be faced with protracted and possibly acrimonious litigation with all the attendant unhappiness and social, emotional, and educational disruption for C. The court was invited to refuse the prayer of the petition.

    Petitioner's response

41. Acquiescence: Counsel for the petitioner referred to In re H and others (Minors) (Abduction: Acquiescence) [1998] AC 72, particularly to the speech of Lord Browne-Wilkinson at pages 79 to 90. What was known of the actings of the petitioner was not consistent with acquiescence. He had consulted his solicitor. He had asked the local police for help. As soon as the Canadian court had issued the October 2000 order, he had consulted the regional police. A regional police officer Detective M had taken charge of the official search for the respondent and C. While the respondent's mother had spoken of Scotland in October 2000, it appeared that Detective M had taken the view that it was necessary to locate the respondent's precise whereabouts before putting the Hague Convention into motion. From the petitioner's fax number 6/29 of process, it appears that Detective M waited until he had learned of those precise whereabouts (which he did on 4 February 2002) before sending the petitioner the Hague Application form for completion: that was the reason for the delay between 28 June 2001 (the date when the form was sent to Detective M by the central office) and 11 February 2002 (the date when the petitioner completed the form). Quite apart from the official police search, the petitioner and his mother carried out their own enquiries, asking the respondent's mother where the respondent was, contacting flying centres in Scotland, registering on a "lost persons" website, and asking for volunteers to help in an internet search. It was far from clear that the petitioner knew that the respondent's sister lived in Edinburgh, or that he even knew her married name. It could not be said that the facts in this case satisfied the test of acquiescence as set out in the recent House of Lords decision In re H (Minors) (Abduction: Acquiescence) cit. sup.
42. Settlement: Counsel for the petitioner submitted that the test in Soucie v Soucie, 1995 S.C. 134, was a very stringent one. C was only five years old. He was certainly settled with his mother, and was very attached to her, but it was submitted that he did not have the necessary degree of establishment in the community or the environment to which the Inner House referred in Soucie. Counsel further referred to P. v S. 2002 Fam.L.R. 2; and Friedrich v Friedrich 78 F 3d 1060 (1996), and submitted that the difference between the child's surroundings in Scotland as compared with Canada was not of such compelling force as to outweigh the fundamental purpose of the Hague Convention. It was not as if the respondent was a total stranger to Canada: she had been born and brought up there; her own mother and father lived in Canada; she had dual nationality; she was familiar with Canadian society. Counsel accepted that the respondent would be likely to make an application to the Canadian courts to allow her to remain in Scotland. The Canadian courts might well grant her application: but it was for the Canadian courts to decide. It was doubtful whether the petitioner had the resources (financial or other) to initiate contact proceedings within the Scottish jurisdiction. The court should grant the relevant part of the prayer of the petition.

Opinion

43. Acquiescence: Article 13

In the case of In re H and others (Minors)(Abduction: Acquiescence) [1998] AC 72, Lord Browne-Wilkinson observed at pages 86-89 that:

"...[t]he fact that there has been some active conduct indicating possible acquiescence does not, on any view, justify ignoring the subjective intentions of the wronged parent. Even on the test laid down in In re A (Minors)(Abduction: Custody Rights), it is only where the wronged parent has said or done something which is clearly and unequivocally inconsistent with the summary return of the child that his actual subjective intentions are to be disregarded ...In my view, article 13 is looking to the subjective state of mind of the wronged parent. Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted? ...In my judgement, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world's perception of his intentions ... Once it is established that the question of acquiescence depends upon the subjective intentions of the wronged parent, it is clear that the question is a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him ...Finally, it should always be borne in mind that under article 13 the burden of proving that the wronged parent has consented to or acquiesced in the abduction is on the abducting parent who is resisting the summary return of the child. This placing of the burden of proof on the abducting parent is designed to ensure that the underlying purpose of the Convention is carried out, viz. the child is to be summarily returned to its country of habitual residence unless the abductor can prove that the other parent has in effect consented to the removal of the child."

44. In the present case, I am not satisfied on the information available that the petitioner acquiesced in the removal of C from Canada to Scotland. On the contrary, the affidavits and productions tend to suggest that, as soon as the petitioner realised that the respondent had disappeared with C, he took such steps as he could to try to trace them.
45. In particular, the petitioner contacted his lawyer. He contacted the local police. Not surprisingly, in view of the false information provided by the respondent, the petitioner initially focused on Thunder Bay. During the summer of 2000, the petitioner enrolled motions and applications in the Canadian court. By October 2000, the petitioner had obtained a court order, number 6/28 of process, which (according to his lawyers' letter dated 3 October 2000, number 6/22 of process) gave him sufficient material to approach the regional police and to request that the official search be extended beyond Ontario and beyond Canada. The petitioner duly went to the regional police, on 22 October 2000, and requested their assistance.
46. Detective M of the regional police undertook responsibility for the search. He made various enquiries. In particular he spoke to the respondent's mother in both October and December 2000, and learned that the respondent was probably in Scotland. It is not entirely clear why the detective waited until 30 April 2001 to pass information to the Missing Children Registry of the Royal Canadian Mounted Police so that assistance from Interpol could be obtained. Whatever the reason for the apparent delay, the petitioner cannot be held responsible. Similarly, the fact that Detective M took the view that it was necessary to ascertain the respondent's precise address in Scotland before putting the Hague Convention machinery into motion is not in my view something for which the petitioner can be held responsible.
47. I accept that it remains something of a mystery why the respondent's Scottish address could not be ascertained earlier, bearing in mind that Interpol became involved, and, presumably, the Scottish authorities were alerted. The respondent was living an open life, and was using her proper name. Nevertheless the fact remains that, despite the official efforts to trace the respondent and C, their address was not discovered until early in 2002, when the respondent applied for employment with the Scottish Executive. That application led to the respondent's precise address becoming available to the Missing Children Registry, and ultimately, on 4 February 2002, to Detective M.
48. Detective M then sent the Hague Convention application form to the petitioner, who completed it on 11 February 2002. The Hague Convention application then took its course, resulting in a first hearing in the Court of Session on 2 April 2002, and a second hearing on 2-3 May 2002.
49. Quite apart from the official search procedure led by Detective M, the petitioner and his mother made informal attempts to trace the respondent and C, all as outlined in paragraph [20] above.
50. In the circumstances, I do not accept that any inference of acquiescence can be drawn.
51. (b) Settlement: Article 12

The fundamental purpose of the Hague Convention is the summary return of an abducted child to the jurisdiction from which the child has been abducted. It is the court's duty to try to achieve this purpose. Nevertheless exceptions are permitted, but only in certain circumstances, and only if fairly stringent tests are satisfied. One such exception may arise where a child has become so settled in the new environment that the needs of the child outweigh the aim of the Hague Convention. As the Inner House explained in Soucie v Soucie, 1995 S.C. 134, at page 139:

"...we consider that the proper question is whether the child is so settled in her new environment that the court would be justified in disregarding an otherwise mandatory requirement to have the child returned. This is another way of saying that the interest of the child in not being uprooted is so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place. We agree with the Lord Ordinary that this is not just a balancing exercise between the requirements of the Convention on the one hand and the interests of the child on the other. Such a balancing exercise may be appropriate when considering the discretionary powers of the court under article 18, which will come into play if the proviso to article 12 is established or indeed if any of the matters contained in article 13 are established. Even in discretionary cases it has been said that it is for the court to conduct the necessary balancing exercise between what would otherwise be required by the Convention and the interests of the children, but only where it can clearly be shown that the interests of the children require it, should the court refuse to order their return. See Re A (Minors)(No.2). In our view the position is a fortiori when what is being considered is an exception to an otherwise mandatory provision. It follows in our view that in considering the proviso to Article 12 what must be clearly shown is that the settlement in a new environment is so well established that it overrides the otherwise clear duty of the court to order the return of the child."

52. C is aged 5. He has been resident in Scotland for just over two years. He has lived in his present home for about one year. He has attended his primary school for about nine months. He has made friends, both at home and at school. He is progressing well with his lessons. He has the support of an extended family including his Aunt KS. He is apparently noticeably happier and more settled than he was either in Canada, or when he first arrived in Scotland. His accent is becoming more Scottish than Canadian.
53. Importantly, however, the affidavits show that C is strongly attached to his mother, the respondent. She is his main source of happiness and stability. It is accepted by all concerned that wherever C goes, the respondent will go.
54. Against that background, it seems to me that C has just begun his social and educational career. He has just begun the process of relating to the community and the environment in the Edinburgh area. But he appears to be a lively and intelligent child, who would now be able, if necessary, to adapt to a new environment and to make new friends - provided always that he had the stabilising presence and support of his mother. He appears to have responded well to the interest and stimulus provided by school-work. In that context, despite having given careful consideration to the views expressed by the child psychologist and by KS, I am not persuaded that either C or a Canadian primary school would be unable to cope with any adjustment required to dove-tail a Scottish and a Canadian primary school education. Further, on taking a broad view of C's lifestyle, and having regard to both physical environment and emotional attachment, I am not persuaded that C would face insuperable difficulties on returning to Canada provided that he was with the respondent - particularly as the respondent was born and brought up in Canada, and her parents are currently living there.
55. In all the circumstances, I am not persuaded that C is at an age or stage in his life when the reasons for not uprooting him are so cogent as to outweigh the primary purpose of the Hague Convention. While accepting therefore that there will inevitably be some unwelcome disruption in C's life if he has to return to the jurisdiction of the Canadian courts, I have not found it possible to conclude that the case for C's remaining in his present situation is so cogent that the clear and fundamental purpose of the Hague Convention should be overridden.
56. I accept that on arrival in Canada, the respondent is likely to renew her application for mobility rights, and in particular will seek the court's sanction for her current residence in Scotland, with certain specific arrangements offered in respect of contact with the petitioner. It would be entirely proper for the respondent to make such an application; but it is for the Canadian courts to determine, not the Scottish courts.

Court's ultimate discretion

57. While the above is sufficient for the disposal of this case, it may be appropriate to record how I would have exercised my discretion had either acquiescence or settlement been established.
58. Had acquiescence been established, I would have exercised my discretion in the respondent's favour, by refusing the prayer of the petition, on the view that C's circumstances in Scotland are good; that the petitioner had made a decision to accept the fact that C was resident in Scotland; and that contact could take place by telephone and also when the respondent and C made visits to Canada.
59. Had settlement been established, I would have exercised my discretion in the petitioner's favour (i.e. by ordering the return of C to Canada) bearing in mind inter alia the overriding purpose of the Hague Convention, C's young age, the respondent's dual citizenship, the circumstances of C's removal from Canada, and the fact that the petitioner and the Canadian authorities have only very recently discovered the respondent's precise whereabouts.

Conclusion

60. In terms of the prayer of the petition, I ordain the respondent to return the child C to Canada and to the jurisdiction of the Court of Ontario, Canada, all in terms of the Child Abduction and Custody Act 1985. However as discussed with counsel at the second hearing, I shall put the case out By Order so that practical details such as passports, flights, and time-tabling may be discussed.