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K T, Re Petition of [2003] ScotCS 151 (22 May 2003)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD McEWAN

in the Petition of

K A T

Petitioner;

for

An order under the Child Abduction and Custody Act 1985

________________

Petitioner: Dowdall, Morton Fraser

Respondent: Stirling, Drummond Miller, W.S.

22 May 2003

The matter before me concerns two children, G D T, presently aged 6 (dob 27 December 1996) and K A T, presently aged 4 (dob 29 September 1998). At this time they are living with their mother, J M M or T (the respondent) at an address in Stornoway. Their father, the petitioner K A T, lives at Geralton, Western Australia, and until recently all of them lived there as a family. The children were born in Australia and their parents are Australian and British citizens. Both parents are by origin Scottish, having gone together to Australia in or about 1993. In September 2002 the mother brought the children to Scotland. She intends to remain here with them. The father, however, opposes that and has asked for them to be returned to Australia. It is accepted that by the law of Australia both parents had equal custody rights to the children and that the petitioner was exercising those rights at the time of their removal to Scotland (Affidavit 6/3). In these circumstances he invokes the Hague Convention 1980 to ask this Court to return the children to Australia. I do not need to set out the Convention appended as Schedule 1 to the Child Abduction and Custody Act 1985. It is enough to notice and observe that in this case unless the respondent (on whom the onus lies) can prove on a balance of probabilities that the petitioner consented to their removal, the Court must order their return. It is not a matter of any discretion. It would then be for the Courts in Australia to make decisions on custody. This case has been raised within a year of the removal. The mother's position is that the father consented. He maintains he did not. I was able to hear oral evidence from both parties on 1 May and there was thus an even balance. The petitioner came from Australia to be heard. To be able to hear both parties is unusual since the procedure is summary and often all there is is affidavits. There are no detailed pleadings. I heard submissions then and on 8 May. I also considered a number of affidavits and other productions. In the event of consent being established I was addressed at length on other matters which then become relevant.

In the evidence there are many common areas between the parties which are either agreed or are not seriously disputed and I deal first of all with these. Both parties were very measured in their evidence which was given without a trace of animosity. As between them there is no real issue of credibility although there are some conflicts between them and some of the affidavits on details.

The mother is 34 and the father 43. The mother is a nurse and the father a manager of a mental health service. They went together to Australia in 1993 and lived there together. In January 1995 they married. The mother never really settled to life in Australia. That I suspect was partly due to the very warm climate in Western Australia. At one time they lived in a place called Karratha which is many miles north of Perth and is in the tropics. Thereafter they moved south to Geralton which she said she did not like as a place even though it is much nearer to Perth. Her unhappiness continued and she made several trips back to Scotland for family events. She came home after her marriage in 1996 for a wedding and for three months in 1997 and again in December 1998 for almost five months.

By this time I hold that the marriage was unhappy. The petitioner involved himself in studying for degrees and engaging in other activities away from home. I am sure that his main motive for this was to provide better for his wife and family but he may have been insensitive to his wife's growing unhappiness. She said in evidence that she had always hoped to return permanently to Scotland and I do not doubt that it was mentioned within the family. When the respondent came home in 1998 she phoned the petitioner to say that she was not coming back. The petitioner was upset. He came to Scotland and persuaded her to return.

In March 2001 the respondent again came to Scotland with the children for six weeks, but this merely unsettled her when she returned. That was not helped when the petitioner told her he had no intention of returning to Scotland. His habits continued as before. He was away from home a lot and had to attend conferences all over Western Australia. He was now studying for a third degree. I hold it proved that when they were together at home at that time the subject of return to Scotland was often discussed but inconclusively. The marriage deteriorated. One visit in 2001 to counselling achieved nothing and by the end of that year the parties slept apart and since have not had sexual relations with each other. Separation was discussed with the respondent going to live in Perth with the children at the home of the petitioner's sister (Mrs C C) or with a friend in Albany. There were financial problems with that. Childcare would be needed and the petitioner could not support a second household.

Events now move to 2002 when the respondent planned a further trip to Scotland for a wedding. K was to be a flower girl. The petitioner was initially not happy about this but then agreed to the trip and in April fares were booked. It was an open return ticket. The date of return (October) was later altered to January 2003. The respondent's brother paid the fare of £2,000. I am satisfied that in her own mind the respondent intended to leave in September with the children and not return unless once in Scotland she was unable to support herself and get accommodation. Her feelings were inevitably mixed as she felt sorry for the petitioner. I also hold that by the summer neither party wanted to discuss the subject as it was the source of unhappiness. For the respondent it was apparently easier to talk to others. The petitioner had earlier lost contact with a son from a previous marriage and the respondent knew the problems that had caused. As it happened, in June 2002 contact with his son (B A) was re-established.

It is also not disputed that the respondent sent some of her CDs and sweaters to Scotland; that she closed one bank account but left open another one for her salary. She did not resign her employment. She enrolled the children for school in January 2003, the expected date of return on the air ticket (see Affidavits No.6/7 and 6/9). The petitioner was aware of these facts. There was also a discussion between the parties about the mortgage. The petitioner asked the respondent to sign it over to him but as she was a co-owner she refused. He said he only did so to "test her veracity". Although the petitioner did not know of it, I hold it proved that the respondent told a number of people of her intention to leave and not return. For some reason even the petitioner's own sister did not tell her brother. I will return to this topic.

Let me now go slightly ahead in time to other matters which I hold proved as not in dispute. Since there is no contrary evidence I accept that the respondent told the children, once on the plane home, that they would not be coming back. I suspect that any such statement was made only to G who might have been able to understand. Once the respondent was back in Scotland I hold it proved that the petitioner phoned her. The date of the phone call is not clear but I am sure at this time nobody was watching the calendar. There is a dispute about what was said. The respondent said she was asked "if" she was coming back. The petitioner said that he asked her "when" she was coming back. I cannot resolve this detail but in the circumstances it is unimportant. I suspect this conversation must have been sometime in October or later. Its only importance is this. The petitioner in October took legal advice and on 12 November his solicitors wrote to the respondent to say he was seeking a Hague Convention return (No. 6/8). The letter also makes it clear that the petitioner was saying that his only consent was to a holiday by the respondent and the children.

This letter crossed with a letter to the petitioner from the respondent's solicitors (No. 6/17). That letter enclosed two affidavits (7/9 and 7/10 of process) which would make it clear to the petitioner her intention to remain in Scotland.

I propose now to interrupt dealing with fact and to look at the law. At the hearing a number of authorities were cited to me for various propositions, and I now turn to these, as they assist on matters of fact.

In the first place there is a body of authority mainly in England, about the meaning of "consent" in Article 13 of the Convention. After some initial difference of opinion the settled view seems to me to be as follows. The burden of proof of showing consent lies on the party alleging that the other consented. The standard of proof is on a balance of probabilities and the evidence in support of it needs to be clear and cogent, for should the Court be left in a position of uncertainty the "so called defence of consent" will fail. It is not necessary that the consent be given in writing as it can be proved by inference from conduct and the facts and surrounding circumstances of the case. These propositions I take mainly from re C [1996] 1 FLR 414 at 418/9; re K [1997] 2 FLR 212 at 217 and the reconsidered views of Wall J in re M [1999] 1 FLR 171 at 187. Although every case on its facts is different it can be useful to see what factors the Courts have held important in considering the question of consent, because this is a case where, if there is consent, it has to be inferred.

In re C loc cit the wife returned from America with the children intending to settle permanently. The husband said he had only agreed to her coming on holiday. The background was the mother making a number of trips to the UK and the marriage breaking down. Also the parties had held a sale of toys and other items; the mother had given up her job; her return ticket was cheaper than a single fare; she had been the subject of a number of farewell parties and she had packed all her possessions in many boxes. The judge held that it must have been obvious to the husband she was doing all this in order to leave permanently. The single judge held that however sadly and reluctantly the husband had consented believing, wrongly as it turned out, that she would ultimately change her mind and return.

In re K loc cit the children were brought to England from Texas by the mother. The background again was an unhappy marriage. There was a long discussion between the parties in the garden when she told the husband there was only a 50/50 chance she would come back. She gave up her job but had a return ticket. She said he agreed to that. Although all of this was disputed by the father, the mother's account was preferred. The judge concluded, with some difficulty, that the father had consented even though he subsequently thought better of it.

In re M loc cit consent was inferred against a husband who did nothing in the face of his wife taking obvious and open steps to leave permanently with the child. Inter alia she gave up her job, gave notice to the nursery and sold belongings. (see p.183D).

No doubt in the books there are other examples. Each case depends on its own facts, and while interesting none of these cases is in itself any authority on the facts before me. The legal tests they apply are another matter and I have already set these out.

With these non-disputed areas out of the way and the legal tests before me, I now look at the area where there is, if not dispute, than some uncertainty. It relates not only to events but to conversation and remarks made.

Once the flight for September was booked the marriage deteriorated further and discussion of the trip to Scotland was seldom undertaken. The respondent said that attempts to discuss it led to problems and neither party wanted it to affect the children. The petitioner was particularly unhappy and I suspect that the real reason for this was that the marriage was breaking down. I hold it proved that in or about May the respondent on one occasion said she was ".... going to stay in Scotland and look for work ....". The petitioner's reply was that ".... if that was what she needed to do to be happy, he understood ....". To this extent only I hold the conversation proved as to that extent only the petitioner admitted it. The respondent, however, said that the petitioner added in the further comment that he would "....miss the children ....". He in evidence denied that he said that. On this detail I prefer his denial as it is more consistent with the rest of the surrounding evidence.

The petitioner said that while he thought his wife might stay, she had spoken this way before and always returned. This time he was aware that she had taken no practical steps to pack, settle arrangements or the like. In his own mind the petitioner was uncertain and from what the respondent said to him he thought she herself was unclear. He said that any consent he gave was to the trip as a holiday for all three. There is one matter which I should mention. In the argument Mrs Davie said that the petitioner in cross examination said (in an unguarded answer) that he had consented. She claimed these words were decisive. In my view that is not a correct approach. It is quite clear from all he said, including re-examination, that what he meant was consent only to the holiday as everything else was so uncertain.

I do not think that anything turns on the journey to Perth and to the airport. From the evidence of both parties the matter was not discussed at all. They had to stay with the petitioner's sister and it may be that it was inappropriate to talk about it. That would not be surprising since in my opinion both of them avoided the subject of the flight back whenever possible.

I now wish to look briefly at the affidavits lodged. There is no doubt that a number of those lodged for the respondent show that she discussed her intention with friends. It must be remembered that this kind of evidence cannot be tested by cross examination. Also, however clearly the respondent spoke to her friends is of no moment if the petitioner was unaware of it. The test is not whether the respondent believed the petitioner was consenting but whether in fact he did so. If he was unaware of what she was saying to her friends about leaving for good then it cannot prejudice his position.

Mrs C's affidavit (No. 7/1) is all hearsay. The statements in paragraph 4 (apart from the mortgage) are not even in accord with the respondent's evidence. It is also difficult to reconcile her having "no doubt" about something which was merely "unlikely". Mrs D's affidavit (7/2) is more measured but she never discussed things with the petitioner. Also she is incorrect about bank accounts (plural) (para.8). The affidavit of Mr D (7/3) does not assist on consent. The petitioner said that both he and his friend had been drinking. The remark in paragraph 4 is merely the petitioner telling him in July what the respondent was saying. He has not said he consented nor did he in September (para.6) and it is plain (para.7) that he expected her to return. A M W (No.7/4) does not deal with the petitioner nor does N de W (7/5). Mrs S, again, never spoke to the petitioner (7/6). Mrs H (7/7) does not support any firm intention on the part of the respondent to leave permanently until she was about to go.

Unsurprisingly the affidavits lodged for the petitioner present the opposite view. It is not necessary to refer to all of these but some were put in argument. Mrs P (No. 6/5) is an older woman. She was a friend of both and tried to arrange a coinciding return flight to Australia so that she and her husband could help with the two children. Her evidence is negative but important in this respect. The respondent gave no indication that she would not be returning. That I find surprising since Mrs P spoke to the respondent when they were both in Scotland. By then the mother could have nothing to lose by telling her. Mrs C (6/10) is the petitioner's sister. She admits being told in an email from the respondent that she was not going to return to Australia. In my view, wisely, she did not tell her brother. Interestingly when she spoke to him long after he told her the only reason he did not stop them going to the wedding was to prevent further deterioration in the marriage. Also for what it is worth the respondent never told B A (6/12) of her intention even though he was living in the house for a month before she left. The letters 6/13 to 6/16 were not referred to.

Based upon what is mostly not in dispute and the few areas of dispute, I am firmly of the opinion that at no time did the petitioner consent to the removal of his children within the meaning of Article 13. The respondent has not discharged the onus upon her to prove the matter in a clear and cogent way and at best for her I am left in a position of uncertainty. She had gone before and returned and this time took no steps to finalise her affairs or those relating to her employment or schooling. No sinister motive was suggested for these contra indications and in my opinion the petitioner was right to conclude, no matter what the respondent said, that she would return in January. In these circumstances he cannot be criticised for letting her go to the wedding in September. His opinion is supported by the prompt action he took some weeks later when he found out the true position.

That is sufficient for disposal of the case. However, I should note that I was addressed at some length as to what I should do, at my discretion, if consent were proved. It is not necessary to narrate all of this save to say that I was referred to C v C [1989] 1 WLR 654; Taylor v Ford 1993 SLT 654; Singh v Singh 1997 SC 68 and re K loc cit. As I do not have to exercise any discretion it is better that I express no opinion on the facts or the cases.

In the result I will direct a Convention return of these two children to Australia. It is thereafter a matter for the Courts in Western Australia. I will grant the prayer of the petition and repel the respondent's plea-in-law.