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PUW, Re an Order [2003] ScotCS 231 (19 August 2003)

OUTER HOUSE, COURT OF SESSION

P979/03

OPINION OF LADY SMITH

in the Petition of

P.U.W.

Petitioner;

for

An order under section 8 of the Child Abduction and Custody Act 1985

________________

Petitioner: Scott, Advocate; Turcan Connell

Respondent: Kelly, Advocate; Gilmore Lewis

19 August 2003

[1] This is a petition brought by the father of two children who have been removed from Scotland to Germany by their mother. Section 8 of the Child Abduction and Custody Act 1985 empowers this Court to pronounce a declarator that a child has been wrongfully removed from or retained outside the United Kingdom for the purposes of Article 15 of the Hague Convention on the Civil Aspects of Child Abduction ["the Convention"]. That Article provides for a declarator to the effect that a child has been wrongfully removed from or retained outside one contracting state to be furnished to the central authority of the contracting state in which the child is present prior to the making of any return order. Such a declarator is sought by the petitioner in this case. The Central Authority in Germany has indicated that it cannot accept an application under the Convention as it does not consider that the removal to Germany of the children referred to in the Petition was in breach of any relevant rights of custody. Some dialogue between the central authorities of the two jurisdictions has ensued but, to date, the central authority in Germany has refused to accept the application.

Background:
[2] The petitioner and the respondent, B.M. or N, have two children, C.E.W. [born 5 December 1998] and S.W. [born 3 August 2000]. They are not married but they lived together in Edinburgh from November 1997 until about 16 April 2003. The petitioner is a solicitor. The respondent is a German national and is a doctor. She came to live in Scotland to complete her medical training.

[3] Problems developed in the parties' relationship and on 10 April 2003, the petitioner, by way of Initial Writ, instituted proceedings in Edinburgh Sheriff Court in which he sought orders conferring on him parental responsibilities and rights in respect of the children. That writ was served on the respondent on 11April 2003. On 16 April 2003, the respondent removed the children from the parties' home and took them to live with a friend, in Edinburgh. The petitioner thereafter instructed that an order should be sought from the Sheriff Court in terms of which the children would reside with him every alternate week or at such other times as the Court thought appropriate. He also instructed that an order should be sought in terms of which the respondent would be interdicted from removing the children from the jurisdiction, as he was concerned that that might happen. On 17April 2003, a Minute of Amendment in terms of which such orders were sought was intimated to the respondent's solicitor.

Sheriff Court Orders:
[4] A child welfare hearing was fixed to take place in Edinburgh Sheriff Court ["the Sheriff Court"] on 22 April 2003. On the morning of 22 April 2003, the respondent sent the children to Germany with her father. That afternoon, she attended the child welfare hearing but did not tell anyone that she had sent the children to Germany. She, through her solicitor, advised the Court that she had flights booked for herself and the children to travel to Germany the following morning thus giving the impression, in a deliberate misrepresentation, that the children were still in Scotland. The Sheriff granted an interim order interdicting the respondent from removing the children from the jurisdiction. That evening, the respondent contacted the petitioner and offered that he could have contact with the children on the following Saturday, 26 April 2003. She did not tell him that the children were in fact in Germany. On 23 April 2003, the respondent went to Germany to join the children without advising the petitioner that she had done so.

[5] The petitioner tried to contact the respondent without success and by 25 April 2003, he realised that she had probably left Scotland. His solicitor contacted the respondent's solicitor by telephone and advised that it was intended that interim orders in respect of parental responsibilities and rights, residence and delivery of the children would, that day, be sought on behalf of the petitioner. The respondent's solicitor indicated that the office did not have a solicitor available to appear but did telephone the Sheriff Clerk and advised that the respondent had sent the children to Germany on 22 April 2003, prior to the child welfare hearing and that she too had gone to Germany.

[6] The petitioner's solicitor went to the Sheriff Court on 25 April 2003 and, as had been intimated to the respondent's solicitor, moved the Sheriff to grant interim orders granting parental rights and residence to the petitioner, explaining to the Sheriff that these orders were sought so as to facilitate the return of the children to Scotland pending a decision being made as to their future in the proceedings that were before the Court. The Sheriff accordingly granted interim orders which were in the following terms:

"The Sheriff having heard Counsel for the Pursuer; ad interim Confers upon the Pursuer all parental responsibilities and parental rights in respect of the children namely C.E.W. (b5/12/98) and S.W. (b3/8/00) all in terms of Section 11(2)(b) of the Children (Scotland) Act 1995; ad interim Makes a Residence Order in favour of the Pursuer whereby the said children shall reside with the Pursuer at his place of residence; Ordains the Defender to deliver to the Pursuer said children namely C.E.W. (b5/12/98) and S.W. (b3/8/00) forthwith and Continues the cause to the Child Welfare Hearing previously assigned."

[7] The reference to "Pursuer" is a reference to the petitioner in these proceedings, the reference to "Defender" is a reference to the respondent and the reference to the Welfare Hearing previously assigned is a reference to a hearing that had, at the end of the hearing on 22 April 2003, been fixed for 30 April 2003. The respondent's solicitor confirmed to the petitioner's solicitor, on 25 April, that she was aware that the interim orders had been made that day.

[8] The hearing fixed for 30 April 2003 duly took place. Both parties were represented. The Sheriff expressly confirmed the orders that had been pronounced on 25 April 2003.

[9] The respondent subsequently instituted proceedings in the Altotting District Court in Germany and obtained an order dated 6 May 2003 to the effect that the German Courts had jurisdiction over the children and that the petitioner had, accordingly, no right to remove the children from Germany. That order was served on the petitioner on 7 May 2003. He was not represented when the order was sought nor had he been aware that it was to be applied for.

Habitual Residence:
[10] The order of the Sheriff of 25 April, confirmed in the subsequent order of 30 April ex facie confers upon the petitioner "rights of custody" in the sense that that phrase is used in the Convention. The Sheriff would not have had jurisdiction to make such an order if the children had not been habitually resident in the sheriffdom at that time. Further, it would not be open to the petitioner to found on the rights of custody conferred on him in terms of the order of 25 April unless the children had been habitually resident in the United Kingdom at the time the order was pronounced. That is because Article 3 of the Convention provides that the removal from the jurisdiction of a contracting state or retention outside such a state of a child is only wrongful if it is:

"... in breach of rights of custody attributed to a person, an institution or any other body ... under the law of the State in which the child was habitually resident immediately before the removal or retention."

[11] There is no doubt that the children were habitually resident in Scotland prior to their departure to Germany on 22April 2003. Indeed, that has not been disputed by the respondent in these proceedings. It would have been difficult for her to do so since she had lived in Scotland since 1997, had completed her medical training here, had set up home with the petitioner in Edinburgh, their home being purchased jointly with the respondent contributing to the mortgage payments and her children having both been born in Edinburgh.

[12] It has not been suggested that the children have become habitually resident in Germany. The question arises, however, whether they were still habitually resident in Scotland at the time the Sheriff made the orders of 25 April 2003. Given their age, the answer depends on whether their mother's habitual residence had altered by then.

[13] All the evidence before me indicated that the respondent had not lost her Scottish habitual residence as at that date. Firstly, although the respondent has not lodged formal answers to the petition, her German solicitor, Helmut D. Hofweber, sent a document to this court detailing her responses to it. The document was faxed on 17 July 2003, in anticipation of the hearing that was due to take place on 18 July under cover of a letter which describes it as an "answer to the petition". Article 7 of the petition contains the following averments:

"In the evening of 22 April 2003 the respondent contacted the petitioner and offered contact with the children on Saturday 26 April. On 23 April the respondent left Scotland and flew to Germany. She did not advise the petitioner that she had done so. She telephoned the petitioner and left a message on his answerphone indicating that he could see the children on 25 April. The children also left messages on the answerphone as well. Neither the respondent nor the children gave any indication that they were in Germany."

The response given to that article in the "answer" provided by her German solicitor is in the following terms: "The respondent intended to return to Scotland with the children at that time." Secondly, Article 11 of the petition relates to events that occurred at the Sheriff Court on 30 April, when the respondent was represented by Ms Pryde, solicitor, and includes the following:

"Ms Pryde maintained to the petitioner, his solicitor and counsel that the respondent might not have stayed in Germany had it not been for the orders relating to the children. The respondent had made no final decision at that stage as to her future."

The response given in the respondent's "answer" to those averments is in the following terms: "It is correct what is being said here."

[14] Further, there is no suggestion that the respondent had acquired a job or accommodation in Germany prior to leaving Scotland, nor that she has done so since. Indeed, the position is, apparently, that she is dependent on her father for support and accommodation.

[15] In short, there is no cogent evidence before me to the effect that the respondent left Scotland on 22 April with the settled intention of not returning nor is there any evidence that she had formed any such intention by 25 April.

[16] In the case of In re J (A Minor) (Abduction: Custody Rights ) [1990] 2AC 562, Lord Brandon discussed the meaning of the expression "habitual residence" as it is used in the Convention. He said:

"The first point is that the expression "habitually resident", as used in article 3 of the Convention is nowhere defined. It follows, I think, that the expression is not be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether or not a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."

[17] Lord Brandon's analysis was subsequently relied on by the House of Lords in the case of In re: S (A Minor) (Custody: Habitual Residence) [1998] AC 750. Thus, before an existing habitual residence can be lost, for the purpose of the Convention, the parent whose habitual residence dictates that of the children which, in this case, is the respondent, must have left the first country with the settled intention of not returning to it or must have reached the stage, at some point after leaving, of having formed such an intention.

[18] This approach would appear to be similar to that which is normally followed in Germany, judging by the terms of a letter from the German central authority, faxed on 23 July 2003, which was produced by the petitioner. On the fourth page of that letter, its author advises:

"I can assure you that it is not usual (Court) practice to assume that a new habitual place of residence has been established after only a few days. As a rule, establishment of a new habitual place of residence will only be assumed after a period of approximately six months."

It is, accordingly, somewhat surprising that the District Court in Altotting appears to have been prepared to have conclude that, as at 6 May, less than two weeks after the respondent's arrival in Germany, it had become the children's normal place of residence. It may be, of course, that the Court would not have made such a determination if the petitioner had been represented and a full explanation of the circumstances had been given to it.

[19] Conversely, I have no hesitation in concluding that as at 25 April 2003, the respondent was still habitually resident in the United Kingdom, within the jurisdiction of the Sheriff Court that pronounced the interim orders regarding parental responsibilities, rights and residence to which I have already referred, even although she was not physically present there at that time. Despite the order that had been pronounced in Germany, no submission was made to me to the effect that Germany had become the respondent's habitual residence at any time since she left Scotland in April.

The Orders pronounced by this Court:
(a) Hearing of 18 July 2003 - Whether the children had been wrongfully removed
[20] A hearing took place on 18July, at which both parties were represented. The background circumstances of the parties were explained as was the fact that the central authority in Germany had questioned whether the respondent's removal of the children on 22 April was wrongful. As at that date no Court order conferring rights of custody on the petitioner had been pronounced and since he was an unmarried father, he had no such rights without an order of the Court.

[21] The petitioner sought declarator that the children had been wrongfully removed. It was submitted on her behalf that the removal of the children on 22 April was in breach of the rights of custody of the Sheriff Court. The case of In re H (A Minor)(Abduction:Rights of Custody) [2000] 2AC 291 was cited in support of that submission. The facts of that case were very similar to this one. A child whose parents were unmarried was removed from the Republic of Ireland by its mother without the father's knowledge or consent after he had, to her knowledge, filed an application seeking guardianship and access in an Irish district court. The House of Lords determined that a court could, for the purposes of the Convention, be regarded as a body having a right of custody from the time that the application pending before it is served on the other parent. Broadly put, they did so on the basis that where a court determines issues relating to the care of a child, it is itself exercising a right of custody in the sense that that expression is used in the Convention. It has the power in any such litigation, to make important decisions affecting the life of the child including matters of residence and general matters in respect of the care of the child. Like a parent, it has a duty when doing so to regard the child's welfare as paramount. Once such an application has been served on the other party, the court's power to pronounce effective orders relating to custody is clear. Accordingly, it can be regarded as fully empowered once that stage has been reached.

[22] I understand that the central authority in Germany have questioned whether, if it is the court's right of custody that has been breached rather than that of the other parent, it is open to that parent to apply for a return order. It appears to have been suggested that the application should, in that event, be at the instance of the court which would, in this case, be Edinburgh Sheriff Court. This is a matter which was considered in In re H. Lord Mackay of Clashfern said [at pages 305-6]:

"It remains to consider only ... whether a person other than the holder of custody rights which have been breached by a removal is entitled to found on the wrongful removal. I see no reason in terms of the Convention or otherwise why a person who has invoked the jurisdiction of the Court as a result of which the Court has rights of custody in respect of a child should not be entitled to apply to the Courts of the country to which the child has been wrongfully removed for the restoration of the child to the jurisdiction of his or her habitual residence. It would seem to me an unnecessary obstacle to the smooth working of the Convention to hold otherwise."

[23] I agree. Article 8 of the Convention entitles any person, institution or other body who claims that a child has been wrongfully removed or retained to apply for a return order. It does not provide that such a person, body or institution may only do so if it is their rights of custody which have been breached. Clearly, the person making the application would require to have an interest in it but there can be no clearer example of a person having an interest than that he is the parent who has instituted the application which has had the result of conferring a right of custody on the Court. I see no reason for the central authority to be concerned at the fact that the application before them is being made by the petitioner rather than by Edinburgh Sheriff Court.

[24] I would add that, so far as I am aware, there is no system in place at present in this jurisdiction whereby such an application could be made by a court. Funding considerations would, for example, arise. Clearly, the court would not qualify for legal aid in Germany and it is not immediately obvious why it should, from a budget which is not set for that purpose, fund an application which is ultimately for the benefit of the petitioner. Further, an application at the instance of the court would, by definition, not be upon the instructions of the petitioner. That being so, there would be an inherent risk of his interests not being adequately protected. Indeed, questions might arise as to whether his rights under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms would be breached if he could not make the application himself in the manner and subject to the instructions that he considers best, given the instrinsic link between the application to the German central authority and the determination, in the Sheriff Court, of his civil rights and obligations.

[25] Counsel who appeared for the respondent on 18 July did not dispute that the children had been wrongfully removed by her on 22 April, on the basis that the Sheriff Court, at that time, had a right of custody in respect of them. It would have been difficult for her to do otherwise since proceedings in which orders in respect of custody rights had been instituted in the Sheriff Court and served on the respondent. She did not oppose the granting of an order declaring that the children were habitually resident in Scotland when they were removed and that they were wrongfully removed from the jurisdiction on 22 April. I, accordingly, pronounced an order declaring that the children were habitually resident in Scotland on that date and that they had been wrongfully removed from the jurisdiction.

(b) Hearing of 13 August 2003 - Whether the children had been wrongfully retained
[26] The petition came before me again on 13 August 2003. Both parties were represented. Counsel for the petitioner sought a further declarator to the effect that the children had been wrongfully retained in Germany by the respondent.

[27] It was explained that the German central authority had not, thus far, processed the petitioner's application. I was referred to the letter from it faxed on 23 July, to which I have already referred. At the beginning of that letter, in short, the author expresses the view that if it is the case that a court in this jurisdiction has rights of custody, the application should be at the instance of the court rather than at the instance of the petitioner. As I have already explained, it is my view that the Sheriff Court did have custody rights as at 22 April and the removal of children from the jurisdiction at that date was, accordingly, wrongful. Further, I do not, for the reasons that I have given, agree that the application for a return order requires to be made by the person or body whose custody rights have been breached. It is entirely competent and appropriate, in my view, for a parent with an interest in seeking an order for the return of the child to make the application.

[28] However, another issue arises, as was discussed at the hearing of 13 August. It was submitted on behalf of the petitioner that the children had been wrongfully retained in Germany by the respondent as at 25 April, and thereafter. The petitioner had been granted rights of custody on that date. Any retention of the children outside the jurisdiction after that date was, accordingly, in breach of those rights irrespective of the questions of whether or not the Sheriff Court's rights of custody were breached and if so, who should be entitled to apply for a return order.

[29] As is set out under the above headings "Background" and "Habitual Residence", the petitioner did acquire rights of custody as that term is used in Article 5 of the Convention, on 25 April 2003. The respondent knew that he had done so, her Edinburgh solicitor having confirmed her awareness of it to the petitioner's solicitor that day. The solicitor having done so, it is only reasonable to infer that the respondent was made aware of the existence of the orders at or about the same time. Certainly, nothing to the contrary was suggested to me. It is also clear that, had the respondent not been retaining the children in Germany as at and since 25 April, the petitioner would have been exercising his rights of custody.

[30] After some discussion and a short adjournment to enable him to take further instructions, counsel for the respondent did not oppose the granting of a declarator to the effect that she had wrongfully retained the children in Germany as at 25April and since then. Again, it is difficult to see how, in the circumstances, he could have made any contrary submission.

[31] I was satisfied that the respondent had indeed wrongfully retained the children as at 25 April and since and that it was appropriate to grant an order to that effect. She had not ceased to be habitually resident in Scotland so the children remained habitually resident here. The Sheriff Court orders pronounced that day were clear and unambiguous and conferred custody rights on the petitioner in the sense that that term is used in the Convention. He would have been exercising them as at 25 April if the children had not been in Germany as a result of their mother having removed them there. The respondent was well aware that the orders had been pronounced. I decided, for the sake of clarity, to recall the order that I had pronounced on 18 July but only for the purpose of incorporating its terms into the order which was sought on 13 August, so that a composite order dealing with all three issues of habitual residence, wrongful removal and wrongful retention, could be pronounced. I pronounced such an order.

[32] When pronouncing the order on 13 August, I indicated that I would set out the reasoning behind it and the earlier order in a short opinion, in an effort not only to explain how and why the orders had been made but also to deal with the queries that had been raised by the German central authorities and I hope that this opinion serves to clarify those matters on which it has sought further guidance insofar, of course, as this Court is competent to do so.

[33] I should add that, in the course of the two hearings before me, it became increasingly apparent that the respondent is, without good reason, refusing to face up to the fact that a proper determination of where the children's best interests lie requires to be made as expeditiously as possible. It was not seriously suggested that she would have any stateable defence to an application under the Convention for a return order. Such submissions as were made on that matter went no further than to indicate that, as in all Convention cases, the solicitor acting for the parent who is alleged to have wrongfully removed or retained the child would be bound to ask questions directed to checking whether article 13 might apply. It was not suggested that there were any circumstances in the present case which would justify the invoking of that Article.

[34] The respondent's instructions on each occasion appear to have focussed principally on the issue of expenses, a matter on which submissions were made on her behalf on each occasion since, unlike the orders regarding habitual residence, wrongful removal and wrongful retention, the petitioner's motions to have the respondent found liable in expenses were opposed. Equally, though, there was no indication that she would voluntarily return to Scotland notwithstanding that proof is due to be heard in the Sheriff Court in respect of the petitioner's applications, between 29 September and 3 October. I was told that the petitioner has offered to vacate the parties' house so that she and the children could live there, if the Sheriff determined that the children should live with the respondent, something which could be determined on an interim basis, immediately upon her return.

[35] Further, I was told that the respondent had been advised that it would, in accordance with the usual practice, be open to her to make an urgent application to the Sheriff Court upon her return, with regard to the children's welfare and the issues relating thereto, including residence and review of the interim orders that had been pronounced by the Sheriff on 25 April and confirmed on 30 April. She could not, accordingly, have been left in any doubt that there were clear and accessible avenues open to her to make her views regarding the children's best interests known to the court. She does not, however, appear to have given her Scottish solicitors clear instructions beyond those which were to the effect that any motion for expenses was to be opposed and I could not help but get the impression that the respondent is simply intent on delaying matters. This is a very unfortunate state of affairs. These are young children and their parents cannot, at present, agree what is in their best interests regarding important issues regarding their welfare. The assistance of the Court in determining these issues is urgently required. An application has been made to the central authority in Germany which, in my view, is a proper application. It is imperative that these issues be determined expeditiously and I am confident that, consistent with Germany's Convention obligations, its central authority appreciates that. It is very much to be hoped that it will now feel able to process the petitioner's application.