Scottish Court of Session Decisions

BSC v. JAJ [2003] ScotCS 136 (8 May 2003)

OUTER HOUSE, COURT OF SESSION
P49/03	OPINION OF LORD MACFADYEN in Petition of B S C Petitioner; against J A J or C Respondent: for an order under the Child Abduction and Custody Act 1985 ________________

 

 

Petitioner: Davie; Drummond Miller, W.S.

Respondent: Wylie; Balfour & Manson

8 May 2003

Introduction

1. The petitioner and the respondent were married in Ohio, United States of America, on 10 July 2001. They have one child, M, who was born on 25 March 2002. Until 18 September 2002 the parties and M resided together in family in the United States, latterly at an address in Aransas Pass, Texas. On that date the respondent left the petitioner, taking M with her. On 21 September 2002, the respondent and M left the United States and travelled to Scotland. Since arriving in Scotland they have resided with the respondent's parents in Aberdeenshire.
2. In these proceedings the petitioner seeks an order under Article 12 of Schedule 1 to the Child Abduction and Custody Act 1985 ("the 1985 Act") for the return of M to Texas.

The Convention

3. The Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"), so far as set out in Schedule 1 to the 1985 Act, has the force of law in the United Kingdom by virtue of section 1(2) of that Act.
4. Article 3 of the Convention provides inter alia as follows:

	"The removal ... of a child is to be considered wrongful where ―
	(a)	it is in breach of rights of custody attributed to a person ..., either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal ...; and
	(b)	at the time of removal ... those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal ... "

5. Article 12 provides inter alia as follows:

"Where a child has been wrongfully removed ... 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 ..., the authority concerned shall order the return of the child forthwith."

6. Article 13 provides inter alia as follows:

	"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 ... [who] opposes its return establishes that ―
	(a)	the person ... having the care of the person of the child ... had consented to ... the removal ...; or
	(b)	there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

Undisputed matters

7. It is not disputed that at the date of the respondent's departure from Texas, M was habitually resident in that state. Nor is it disputed that by the law of Texas the petitioner had, as at that date, rights of custody in respect of M, and was actually exercising those rights jointly with the respondent. Prima facie therefore, the respondent's removal of M to Scotland was wrongful. Less than a year elapsed between the removal of M from Texas and the presentation of this petition. It follows that the petitioner has a prima facie case for an order under Article 12 requiring the return of M to Texas.

The respondent's position

8. The respondent maintains on two grounds that the order sought by the petitioner should be refused. First, she maintains that the petitioner consented to her removal of M from Texas to Scotland, and that accordingly the order should be refused under Article 13(a). Secondly, she maintains that there is a grave risk that to return M to Texas would place her in an intolerable situation, and that accordingly the order should be refused under Article 13(b).

Consent

9. Miss Wylie, for the respondent, submitted that the proper approach to determining whether or not a party had consented to the removal of a child from the jurisdiction of its habitual residence was similar to the proper approach to the alternative Article 13(a) question of acquiescence, as set out by Lord Browne-Wilkinson in In Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, at 87G and 90D-G. It was normally a question of identifying the subjective intention of the party said to have consented (see P v P (Abduction: Acquiescence) [1998] 2 FLR 835, where the point was conceded). Mrs Davie, for the petitioner, submitted, under reference to In Re H at 86G-H, that the evidence of consent required to be clear and unequivocal. She also referred to Friedrich v Freidrich (1996) 78 F 3d 1060, but that case seemed to me to be concerned with a very different matter.
10. It seems to me that it may in many cases overcomplicate the question of consent to analyse it in the same way as acquiescence. Acquiescence is concerned with the inference to be drawn, about the attitude of the party at the time of the removal, from his or her subsequent actings. Determining whether a party consented at the time of the removal does not normally involve such retrospective inference. It will usually, in my view, be sufficient to ask whether the evidence shows that, at the time of the removal, the party consented to it. Mrs Davie was, however, in my view right to emphasise the need for a case of consent to be clearly established. Having regard to the aim of the Convention, it would in my view be wrong to make a finding of consent on equivocal evidence.
11. In the present case the starting point of the case of consent is a document (No. 7/1 of process) said to have been written by the petitioner. The document is in the following terms:

"I [B S C] sign over all rights to [M]. She is allowed to leave to the UK with her mother.

[signed] [B S C]

07/08/02."

In the document, the petitioner's name and M's name are set out in full. Although in her pleadings and her affidavit (No. 7/4 of process, paragraph 14) the respondent treats that document as having been written on 7 August 2002, I think she is mistaken about that. Other documents in the case show that the petitioner, as one would expect, adopted the American convention of setting out a date with the month first, followed by the day of the month. "07/08/02" therefore seems to me indicate that the petitioner wrote the document on 8 July rather than 7 August 2002. It was therefore written some two and a half months before the respondent removed M to Scotland.

12. The circumstances in which the document was written are described thus by the respondent in her affidavit (No. 7/4 of process) at paragraph 14:

"On 7 August 2002 we had an argument because I asked [the petitioner] about him abusing prescription painkillers. I again told him I wasn't happy and that I couldn't keep going on with his behaviour. He said 'Get out, this is my house, why don't you take [M], just go.' He wrote a note as follows [there follows the text as quoted above]. He signed and dated the note. He told me to take the note but I just left it on the table. Over the following two days he kept saying 'Don't you want the note. Why don't you take the note?' On the second day, I picked up the note and put it in my wallet."

13. The petitioner's evidence about the document, which is contained in his second affidavit (No. 6/2 of process), is in the following terms:

"I have seen the note that I was supposed to have written on 7 August 2002. I certainly do not remember writing this note. The handwriting looks like it is mine. It is possible although I can't remember, that I wrote the note one night during a drunken argument with [the respondent]. I had no idea she would keep it and use it against me. She didn't leave until 18 September 2002 after all."

The petitioner offers no response to the respondent's evidence about his having pressed her over a period of two days to keep the document. The sentence "I had no idea she would keep it ..." might be thought to imply a recollection of the writing of the document which the petitioner otherwise denies.

14. Miss Wylie recognised that for the case of consent to succeed it was necessary to find an evidential basis for concluding that the document, albeit written in July (or August), expressed an attitude to which the petitioner still adhered at the time of the removal in September. She submitted that that was to be found in part in the circumstance that the petitioner pressed the respondent to keep the document. In addition, she founded on a telephone conversation between the parties on 18 September 2002. It is necessary to put that conversation in context. In September 2002 the respondent's parents were visiting the parties. They were due to fly home to Scotland from Houston on 19 September. During their visit, the respondent had confided in them about the difficulties which she was experiencing in her marriage. She decided to leave the petitioner and travel with her parents to Houston. She left a letter for the petitioner. It will be necessary to return to its terms in more detail, but in it she indicated that she would telephone him from Houston. She did so. In her affidavit (No. 7/4 of process, paragraph 19) she states:

"[The petitioner] said 'Don't bother contacting me. You go and support yourself and your daughter. Don't bother calling or contacting me again.'"

The respondent's father listened in to the conversation, and in his affidavit (No. 7/17 of process, paragraph 16) recalls what the petitioner said in the following terms:

"Go support yourself and [M]", and "Don't call or contact me again".

In his second affidavit, in which he comments on the respondent's answers, the petitioner makes no reference to that conversation.

15. On the respondent's behalf it was submitted that those remarks by the petitioner amounted to an expression of his consent to the removal of M to Scotland. That submission was based on a number of points made in the respondent's affidavit (No. 7/4 of process, paragraph 19):

"[The petitioner] knew I could not possibly support myself and [M] in America. He knew my residence permit application had not been processed as we had moved address so many times. He knew I could not legally work in America. He knew I did not have medical insurance for [M] and I. He knew I had no money, he knew that I had no visible means of support. He did not offer to maintain me. There were no agencies to whom I could approach to help me in this precarious position and my parents had to leave the country, so they could not help me either. He was aware that my only option was to return to the United Kingdom."

The petitioner does not, in his second affidavit, comment specifically on those averments. He does, however, indicate (No. 6/2 of process, paragraph 8) that he was aware that the respondent had originally entered the United States on a 90 day visa, that he was her sponsor in an application for longer term permission to remain, and that it was a condition of that application that she should reside with the petitioner. He indicates further that he was aware that she could not legally work, and that as an alien she was not entitled to any benefits.

16. Mrs Davie submitted that the document of 8 July, if it was indeed at the time it was written an expression of consent by the petitioner, had ceased to have effect as such before the removal took place. She based that proposition first on averments made on the respondent's behalf in the action which she raised in Aberdeen Sheriff Court (No. 6/4 of process). In article 10 of the condescendence of the initial writ the respondent averred that on or shortly after 13 September 2002:

"The pursuer told the defender she wanted to leave. He said it would be impossible for her to leave the country and that she could never take the said child away. He said that she would be charged with kidnapping and imprisoned."

Although the respondent does not specifically mention that episode in her affidavits, it is clear that her father did at that stage go to speak to the local chief of police inter alia about the risk of a kidnapping charge. Those averments, Mrs Davie submitted, showed that after the date of the document, No. 7/1 of process and before the date of the removal, the petitioner's position came to be that the respondent could not take M out of the United States, and would be charged with kidnapping if she did so.

17. Secondly, Mrs Davie founded on the terms of the letter which the respondent left for the petitioner on 18 September (No. 7/7 of process). In it she said:

"I've gone to Houston. I think we need some space, I am going to stay with some friends of the family whilst I sort out job etc."

The respondent was thus suggesting, not that she was leaving the country, but that she was in Houston and contemplating employment. It was in that context that the telephone conversation of 18 September required to be interpreted. That conversation contained no reference to leaving Texas or the United States. What the petitioner said was consistent with his acceptance that the respondent had separated herself from him within the United States. It was reading too much into it to construe it as consent to the removal of M from the United States to Scotland.

18. I accept, in the first place, that the petitioner wrote the document which forms No. 7/1 of process. I accept the respondent's account of the circumstances in which it was written, and in which the petitioner pressed her to keep it. It may be that the petitioner has no recollection of writing it, but it seems to me, as I have already indicated, that the sentence in his affidavit to the effect that he "had no idea she would keep it" tends to suggest that he does in fact recall writing it. As I have already explained, I take the view that the document was probably written on 8 July 2002. At its date, the document was in my opinion a clear expression of the petitioner's consent to the respondent removing M from Texas to the United Kingdom. The circumstances in which the petitioner pressed the respondent to keep the document support, in my view, the inference that he intended the document to have continuing effect.
19. The consent expressed in that document was not, however, irrevocable, and the issue which arises for decision is whether it was still in effect at the time of the actual removal of M from Texas on 21 September 2002. One body of evidence of importance in that connection is the evidence about the telephone conversation on 18 September. The evidence of the respondent and her father satisfied me that such a conversation took place, and that in the course of it the petitioner said something to the general effect that the respondent should go and support herself and M, and should not contact him further. The petitioner offered no competing evidence on the point. Had that telephone conversation been the only additional evidence bearing on the question of consent, I would have been inclined to interpret what the petitioner said on that occasion as reaffirming his consent. The words which he used made no express reference to the removal of M from Texas, but the circumstances founded on by the respondent in paragraph 19 of her affidavit (see paragraph [13] above) place his words in a context in which it is reasonable to suppose that he realised that departure to the United Kingdom was the only practicable course available to the respondent.
20. The telephone conversation on 18 September was not, however, all that happened between the writing of the document No. 7/1 of process and the respondent's departure from Texas with M. Although (indeed, perhaps all the more so because) the incident is not mentioned in the respondent's affidavit, I consider that the petitioner is entitled to point to the respondent's averment in the Sheriff Court action that shortly after 13 September the petitioner told her that she could never take M away, and would be charged with kidnapping if she did. It is acknowledged in the evidence both of the respondent and of her father that the latter sought out the local Chief of Police and that one of the matters which he discussed with him was whether there was a risk of a kidnapping charge. That seems to me to be consistent with the averment in the Sheriff Court action. It therefore appears to me that, whatever his attitude had been on 8 July, by shortly before 18 October 2002 the petitioner was expressing opposition, rather than consent, to the removal of M from Texas. That seems to me to place the telephone conversation of 18 September in a somewhat different context.
21. One other piece of evidence also affects the matter. While, in the abstract, there is considerable force in the respondent's contention that what the petitioner said on the telephone on 18 September implies consent, because he knew that the respondent could not lawfully work in the United States, and that the only way in which she could support M herself would be by returning to the United Kingdom, that reasoning is, in my view, somewhat undermined by the terms of the letter which the respondent left for the petitioner when she set off for Houston. In that letter she said that she was going to stay with friends in Houston "whilst I sort out job etc." In face of the fact that she was expressing herself as intending to find work in Houston, it is in my view much more difficult to construe what the petitioner said on the telephone as consent to the removal of M from the United States rather than merely consent to the respondent taking her to live elsewhere in Texas.
22. In all of these circumstances, while I hold that the petitioner did consent to the removal of M from the United States to the United Kingdom in the document of 8 July, I do not consider that it would be right to treat that consent as still in force by 21 September, given the petitioner's remarks in mid-September as averred in the Sheriff Court action. Those remarks and the threat of kidnapping proceedings seem to me to be inconsistent with continuing consent. Against that background, and in light of the respondent's own suggestion in her letter that she intended to seek a job in Houston, I do not consider that the petitioner's remarks in the telephone conversation on 18 September can be construed as an unequivocal reinstatement of his earlier consent. In the result I do not consider that there is convincing evidence that when the respondent removed M from Texas on 21 September 2002 and brought her to Scotland, she did so with the consent of the petitioner. I therefore do not consider that an order for the return of M to Texas can be refused under Article 13(a) on the ground of the petitioner's consent.

Intolerable situation

23. M is now thirteen months old. The respondent has always been her primary carer, and since September 2002 has had sole care of her. M has all along been breast-fed by the respondent. She continues to be breast-fed, although, as is appropriate to her age, she now takes other food as well. Miss Wylie submitted, as the first stage of the respondent's case under Article 13(b), that in these circumstances it would place M in an intolerable situation if she were compelled to return to Texas in circumstances in which the respondent was unable to return with her.
24. The petitioner's position on the point is briefly stated in his affidavit (No. 6/1 of process) at paragraph 2, where he says:

"If [M] is returned to me I have already discussed having babysitters available to look after her. One of them is my neighbour - [M B] who is a qualified childminder".

The petitioner is, however, no longer resident, as he bears to have been at the (unstated) date of that affidavit, in the former matrimonial home. In his second (also undated) affidavit (No. 6/2 of process), he states, at paragraph 10:

"I would be able to take care of [M] if [the respondent] did not come back herself. If I was working I would be able to afford a registered child minder to look after [M] whilst I was at work."

These passages do not seem to me to address the speciality of M's age and the fact that the respondent is still breast-feeding her. Mrs Davie submitted that the respondent could not be permitted to found on an "intolerable situation" created by her own refusal to return to Texas. It seems to me that it is unnecessary for me to consider that issue, since it is not the respondent's case that she is refusing to return to Texas, but rather that she is unable to do so.

25. I am satisfied that, in the circumstances on which the respondent founds, it would prima facie place M in an intolerable situation if an order were pronounced for her return to Texas in circumstances in which it was impossible or impracticable for the respondent to return with her. The issue which therefore arises is whether it would indeed be impossible or impracticable for the respondent to return to Texas with M. In addressing that issue, I leave out of account (a) the question of financing the respondent's travel to the United States, because I understand that public funds can be made available for that purpose, and (b) the fact that respondent has no current right to enter and remain in the United States, because I understand that special arrangements exist for granting temporary leave to enter the United States to a parent returning there with a child whose return has been ordered under the Convention.
26. What the respondent does found on is her inability to support herself and M while in the United States. Although she is a fully trained Norland nanny, and thus has professional skills by means of which she is able to support herself and M when permitted to work, as she does in Scotland, the difficulty is that she has never had, and would not have if she returned to the United States with M, a work permit which enables her lawfully to work as a nanny, or in any other capacity, in the United States. The petitioner acknowledges that that is so. Moreover, he acknowledges that the respondent would not be entitled to any benefits from public funds to maintain her and M while in the United States. In the absence of any evidence as to how long it may take to resolve through the courts in Texas the dispute between the parties as to where and with whom M should reside, I can do no more than suppose that the proceedings may take a similar time to such proceedings in Scotland. The length of the proceedings will inevitably be affected by the extent and nature of the dispute, and the extent to which rights of appeal exist and are deployed. I do not consider that it would be appropriate to assume that the matter will necessarily be brought to a conclusion in a matter of weeks or a few months. I am therefore persuaded that the respondent's inability to support herself and M in the United States is a genuine obstacle to her returning to the United States with M, at least if the matter is tested by reference to her own resources. If the respondent must depend on her own resources, an order for M's return to Texas would in practice separate M from the respondent, and as I have already held, that would in my opinion place M in an intolerable situation.
27. If the petitioner were willing and able to provide the respondent and M with suitable accommodation in the United States, and to pay adequate maintenance for them so long as the proceedings over the care of M continued, that would, in my view, be a complete answer to the respondent's Article 13 (b) case. In that event it would not be open to the respondent to argue that an order for M's return would have the practical effect of separating her from the respondent and thus placing her in an intolerable situation. The petitioner does propose certain provision of accommodation for the respondent and M. The Article 13(b) case therefore, in my opinion, comes to turn on whether what he proposes is satisfactory for the purpose, and whether he can be relied on to provide what he proposes.
28. In his first affidavit (No. 6/1 of process) the petitioner gave his address as the former matrimonial home in Aransas Pass, and stated at paragraph 2:

"I am living in a two bedroomed newly built apartment which is fully furnished. I also own a mobile home with one acre of land. I am working and able to support [M]."

In his second affidavit (No. 6/2 of process), which must have been sworn some days after 14 February 2003 since it comments on the respondent's affidavit (No. 7/4 of process) sworn on that date, he gives a different address, in Bandera, Texas. In paragraph 10 of that affidavit he states:

"I currently work as a ranch hand taking care of the horses as Lightning Ranch in Bandera, Texas. I still retain ownership of the apartment at Aransas Pass and it would be perfectly possible for [the respondent] and [M] to stay there. I am currently earning between five and six hundred US dollars a week take home pay. If [the respondent] returns to the United States she will not be eligible for benefits and I would be prepared to assist her financially."

29. In her second affidavit (No. 7/28 of process) the respondent challenges the accuracy of the petitioner's evidence. First, she says that he does not work at the Lightning Ranch. No. 7/32 is a letter from the owner of the Lightning Ranch stating that the petitioner was employed there only from 18 February to 22 March 2003, when he was "terminated for cause". He was seen to depart in a truck fully loaded with his possessions. Secondly, the respondent disputes that as a ranch hand the petitioner would earn as much as 500 U.S. dollars to 600 U.S. dollars per week. No. 7/31 of process is a letter from an experienced ranch manager indicating that the normal rate is between 6.00 U.S. dollars and 8.00 U.S. dollars per hour. No. 7/33 of process is a letter from another ranch owner stating that the average pay for a ranch hand is 55 U.S.dollars to 65 U.S. dollars per day. The respondent in paragraph 11 of her second affidavit states that the owner of the Lightning Ranch told her that the petitioner's earnings were 300 U.S. dollars to 350 U.S. dollars per week. Thirdly, the respondent disputes the petitioner's assertion that he "still retains ownership" of the apartment in Aransas Pass. She states that it was never owned by him, only rented. Moreover, No. 7/37 of process is a letter from the manager of Bayshore Apartments in Aransas Pass confirming that the petitioner has not been seen there since February 2003, when he left owing 775.00 U.S. dollars unpaid rent.
30. Mrs Davie, at the outset of the hearing, accepted that the petitioner's position was no longer as set out in his affidavit. She accepted that he had lost his job at the Lightning Ranch. Her information was that he was now in Washington State, doing odd jobs, and that he still earned about 600 U.S. dollars per week. His latest instructions were that he would make available to the respondent and M the mobile home in Bandera (evidently the one referred to in paragraph 2 of No. 6/1 of process), and that he was willing to pay maintenance of 150 U.S. dollars to 200 U.S. dollars per week. Communication with the petitioner was difficult, and Mrs Davie felt unable responsibly to ask the court to make an order for M's return to Texas without vouching of the petitioner's current position. She therefore sought an adjournment of the hearing for that purpose. I took the view, however, that it was the petitioner's responsibility to ensure that those representing him had up-to-date information about his circumstances, and that since these proceedings had begun as long ago as 22 January and had thus already taken much longer than the six weeks contemplated in the Convention (Article 11), the hearing should proceed, reserving the possibility that, if it appeared to be necessary or appropriate, the petitioner might be afforded additional time to vouch any aspect of his up-to-date circumstances on which a decision in his favour depended.
31. The respondent submitted that, in addition to the fact that the basis on which the offer of maintenance in the petitioner's affidavit no longer subsisted, there were other circumstances that made it inappropriate to accept that the petitioner's offer of maintenance should be accepted. Reference was made to his criminal record, which included offences of dishonesty. Reference was made to the fact that for a time he lived under an assumed name and used a false social security number in order to hide from the authorities. The respondent, in her affidavit, makes reference to the petitioner's failure to make proper provision for her and M while the parties were living together, including a failure to make proper provision for medical attention. There is support for that in the pursuer's mother's affidavit (No. 7/12 of process). The parties lived in four different places during their brief cohabitation, because of the petitioner's failure to retain employment. The petitioner had falsely understated the gravity of the assault on the respondent of which he was convicted in April 2002 (compare paragraph 4 of No. 6/2 of process with the report from the Bandera County Sheriff's Department, No. 7/34 of process). He had failed to maintain the child of his first marriage, and built up arrears of maintenance of 16,000 U.S. dollars in respect of her.
32. I am of opinion that if the petitioner made the provision for the respondent and M which was mentioned by Mrs Davie, namely the provision of accommodation in a mobile home, and maintenance of 200 U.S. dollars per week, that would be sufficient to enable the respondent to accompany M to Texas, and thus avoid subjecting her to an intolerable situation. I am not persuaded, however, that it would be right to proceed on the basis that the petitioner can be relied upon to make such provision for the duration of any proceedings about the care of M. I take that view for a number of reasons.
33. I deal first with the provision of accommodation. I take the view that the evidence before me shows that the petitioner's claim to own the former matrimonial home was false when it was made. At the date of his second affidavit he may well still have been tenant of the apartment, but within days of swearing that affidavit, in which the apartment was held out as available to accommodate the respondent and M, he had abandoned the tenancy leaving about six weeks' arrears of rent. Although he falls back on the offer of accommodation in the mobile home, I note that although reference to that mobile home was made in his first affidavit, no attempt has been made to vouch its availability. For the reasons which I shall shortly discuss, I do not consider that it would be safe to proceed on the basis of the petitioner's unvouched assertion as to the availability of this accommodation. This is not a new matter on which the petitioner can reasonably expect to be allowed more time to produce evidence.
34. I deal next with the provision of maintenance. The difficulty, in my view, is not the lack of vouching of the petitioner's current earnings. Indeed, if, as he claims, he is doing odd jobs, vouching of a few weeks' earnings goes only a limited distance towards establishing that that level of earnings can be maintained. The difficulty in my view is more deep-seated. The petitioner has demonstrated difficulty in staying in any particular job for more than a few months. I am satisfied on the evidence adduced from ranch operators that in his affidavits he exaggerated his earnings. He has a history of not maintaining the respondent and M satisfactorily. Although I place little weight on this because there is no doubt more to the matter than has been explained to me, he also built up substantial arrears of maintenance in respect of the child of his previous marriage. His honesty is in question, not only because of his criminal record and history of adopting a false identity, but also because of aspects of his evidence in the present case, including his attempt to paint a false picture of his conviction for assault on the respondent. I do not regard that conviction is in itself relevant to the matters before me, but his evidence about it casts an unfavourable light on the petitioner's reliability.
35. Having reconsidered at this stage of my consideration of the case Mrs Davie's motion for a continuation of the hearing to enable the petitioner to vouch his present position, I do not consider that I should grant it. So far as accommodation is concerned, the question of the mobile home has been live from the outset. The petitioner must have known since February, when he abandoned the tenancy of the former matrimonial home, that the mobile home, if it is available to him, is the only means by which he can offer accommodation to the respondent and M. He has had ample time to vouch its existence and availability, but has not done so. It would not be appropriate, in my view, to give him more time now to do so. So far as earnings are concerned, I proceed on the assumption that, as is stated on his behalf, he is presently doing odd jobs. It does not seem to me that vouching of what he has earned in that way since 22 March would yield any very reliable inference as to his ability to support the respondent and M over an extended period.
36. I therefore take the view that I must reach a conclusion on the material before me. That conclusion is that the offer of accommodation and maintenance made by the petitioner is not one that it would be appropriate for me to regard as reliable. I am therefore of opinion that the petitioner has not made an offer of accommodation and maintenance of such a quality as to enable me to conclude that it is practicable for the respondent to accompany M to Texas. The result is that I remain of opinion that it would not be practicable for the respondent to accompany M and that there is therefore a grave risk that an order that M should return to Texas would place her in an intolerable situation. I am therefore of opinion that I should, on one of the grounds specified in Article 13(b), namely that there is a grave risk that to order her return would place her in an intolerable situation, refuse to order M's return to Texas.

Discretion

37. Miss Wylie reminded me that under Article 18 I have a discretion to order the return of a child even when not compelled by Article 12 to do so. She submitted that I should not exercise my discretion to the effect of making an order if I had upheld the respondent's case under Article 13(a) or 13(b). Mrs Davie did not ask me to make a discretionary order. In my view there are no circumstances that would make it appropriate for me to do so.

Result

38. In the result, I reject the respondent's case under Article 13(a), but uphold her case under Article 13(b). I shall therefore refuse the order to which the petitioner would otherwise have been entitled in terms of Article 12. I shall repel the respondent's first plea-in-law, sustain her second and third pleas-in-law, and refuse the prayer of the petition. I shall reserve the question of expenses.