Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> B.R.B. v. F.L.M. [2003] ScotCS 266 (24 October 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/266.html
Cite as: [2003] ScotCS 266

[New search] [Help]

B.R.B. v. F.L.M. [2003] ScotCS 266 (24 October 2003)

OUTER HOUSE, COURT OF SESSION

P1288/03

OPINION OF LORD EMSLIE

in the petition of

B R B

Petitioner;

against

F L M

Respondent:

for

An Order under the Child Abduction

and Custody Act 1985

________________

Petitioner: Kelly; Erskine MacAskill & Co

Respondent: J. Scott; Morton Fraser

24 October 2003

Introduction
[1] J is the child of the petitioner and the respondent. He was born in the United States of America on 20 July 2001. Like his father the petitioner he is a US national, whereas his mother the respondent is a British national who lived in the USA for many years. As at 4 December 2002, the petitioner and the respondent lived together in family with J in the State of Utah and were habitually resident there. Under Utah law, custody rights in relation to J were vested in both the petitioner and the respondent. On that date, however, the respondent without warning removed J from the USA and brought him to England. It is now conceded on her behalf that what she did constituted wrongful removal of the child from the USA for the purposes of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Convention"), the provisions of which were directly incorporated into the domestic law of the United Kingdom by the Child Abduction and Custody Act 1985. The issue in these proceedings is whether this Court should pronounce an order for J's immediate return to the USA under Article 12 of the Convention, or whether there have been shown to exist grounds for the refusal, or at least suspension, of that remedy under Article 13.

[2] The relevant procedural history of this matter may be shortly stated. The petitioner initially took steps in the English Courts to secure an order for J's return. On 7 February 2003, however, the respondent failed to attend a court hearing in London and disappeared with J. Towards the end of August 2003, the respondent and J were traced to an address in Bridge of Allan, and the present petition was lodged in Court on 26 August. Protective orders were at once made to remove J from the respondent, placing him ad interim in the care of the local authority, and interdicting the respondent ad interim from removing him from local authority care and furth of Scotland. Additional protective orders were pronounced on 11 September. Since the end of August J has lived with foster carers, although supervised contact with the petitioner and the respondent has been permitted to a limited extent. Answers to the petition were lodged on the respondent's behalf on 2 September 2003, and after sundry procedure the case came before me for a final hearing on 9 and 10 October 2003.

[3] The material parts of the Convention appearing in the Schedule to the 1985 Act provide inter alia as follows:

" Article 3

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 ....

Article 12

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.

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 ... (who) opposes its return establishes that -

...

(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."

Article 20 of the Convention, which does not appear in the Schedule to the 1985 Act, further provides as follows:

" Article 20

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."

[4] It is well settled that the fundamental objective of the Convention is to secure the immediate return of children who are wrongfully removed from the State of their habitual residence. Prima facie the Courts of that State are regarded as the appropriate forum for the determination of issues concerning the care and welfare of children habitually resident within their jurisdiction. Accordingly, assuming wrongful removal in the first place, an immediate return order is mandatory unless one or more of the Convention grounds for potentially withholding that remedy is made out by the respondent. In the latter event, however, the Court retains a discretion as to whether or not a return order should nonetheless be made. At the hearing before me, these basic principles were accepted from the outset by counsel for both parties, and it was agreed that since the onus now lay on the respondent, following her admitted wrongful removal of J from the USA, to justify the withholding of an immediate return order, it was appropriate that counsel for the respondent should lead in the debate.

The Respondent's Position
[5] Mrs Scott's presentation of her client's position was clear and straightforward. It was not disputed (i) that J had been wrongfully removed from the USA for the purposes of Article 3 of the Convention; (ii) that the respondent had again acted unlawfully in absconding with him from the jurisdiction of the English Courts earlier this year; and (iii) that in these respects the respondent's conduct was reprehensible and reflected no credit on her. Nevertheless, the Court could and should look beyond the past conduct of the respondent in determining whether or not to make a return order in this case. In particular, Article 13(1)(b) of the Convention made it clear that, whatever the attendant circumstances, a return order could be withheld if the Court was satisfied that to send the child back to the State of its habitual residence would involve a grave risk of exposure to physical or psychological harm, or would otherwise place the child in an intolerable situation. Equally, by virtue of Article 20 of the Convention, a violation of rights under the European Convention on Human Rights would entitle the Court to follow the same course. In this instance, it was submitted, there was one single factor which brought all of these considerations into play, namely the strong likelihood that the respondent would be refused a visa for re-entry into the USA. This would prevent her from accompanying J back to Utah and remaining a central presence in his life; it would also preclude her from participating effectively in the custody proceedings already pending before a Utah Court; and on the available evidence ─ particularly the report from a consultant psychologist, Professor J.R.G. Furnell, No. 7/14 of process ─ such a severance of the bond between mother and child would inevitably present a grave risk of psychological harm to J, and would place him in an intolerable situation. Moreover, the respondent's inability to participate effectively in the Utah custody proceedings would constitute a violation of the right to respect for family life guaranteed under Article 8(1) of the European Convention on Human Rights. For these reasons, it was submitted, an immediate return order was not a live option in the circumstances of this case. The consequences that would flow from the respondent being denied permission to re-enter the USA were too serious to be ignored or overridden, and accordingly a different solution would require to be found.

[6] Counsel's primary submission was that the Court should follow the approach recently adopted by the Inner House in W v W 2003 Fam LR 85. That was a case in which, following the wrongful removal of a child from Australia to the United Kingdom, the respondent mother opposed the making of a return order on the ground that her own application for a re-entry visa was pending or in prospect before the Australian immigration authorities. There was no guarantee that this application would be successful, in which event a return order would bring about the separation of the child from the respondent. The Lord Ordinary accepted that this situation gave rise to a grave risk of psychological harm to the child, and went on to refuse to make the return order sought by the petitioner. On appeal, however, the Inner House decided that this went too far, bearing in mind that the respondent's application for leave to re-enter Australia might well be granted, and that the appropriate solution would be for the Court to make a return order under Article 12 of the Convention, but to suspend its operation until the respondent's visa application was successful. In the alternative, I was invited to make no return order at all at the present time, but merely to issue an opinion to the effect that unless the respondent's application for leave to re-enter the USA was granted within an appropriate period (perhaps six weeks), the petitioner's application would be refused and J would remain in Scotland. Either way, as counsel put it, the granting of any return order must critically depend on the respondent being held entitled to re-enter the USA. Failing such entitlement, the only proper course would be for the Court to refuse to make a return order in relation to J. According to counsel, these proposals reflected a responsible attitude on the part of the respondent, who was doing her best to return to Utah and to participate in the custody proceedings there.

[7] The approach advocated by the respondent did not involve the Court in considering the merits of the custody dispute between the parties. On the contrary, such an exercise would be wholly illegitimate in a Convention case. Nonetheless, the Court must necessarily consider the child's present and future situation in order to determine whether grounds for refusing a return order existed, and in that event how the Court's residual discretion should be exercised.

[8] In support of her submissions in this regard, counsel referred me to a number of authorities discussing the proper application of the Convention in broadly analogous circumstances. As was clear from the relevant chapter in Beaumont & McEleavy's recent text book, the fact and consequences of separation from the abducting parent were sometimes advanced as the basis for allegations of psychological harm and intolerable conditions under Article 13(1)(b). However, as the Court of Appeal strongly affirmed in Re M (Abduction/Psychological Harm) 1997 2 Fam LR 690, it would only be in rare and exceptional circumstances that such considerations might be deemed sufficient to override the Court's primary duty under Article 12 to return abducted children to the State of their habitual residence. Such circumstances were held to exist in that case.

[9] State Central Authority of Victoria v Ardito (29 October 1997) was a case in which the US Central Authority had requested the return of a child wrongfully abducted and removed to Australia. The abducting mother applied for a visa to accompany the child back to the USA, with a view to participating in custody proceedings there. This application was refused, and by reference to both Articles 13 and 20 of the Convention the First Instance Court in Melbourne held that an order for the child's return to the USA in such circumstances would place him in an intolerable situation. On that basis, the petitioner's application for a return order was refused. In Director-General, DFYCC v Bennett 2000 Fam FCA 253, the mother of a young child wrongfully removed him from England to Australia. On aboriginal heritage grounds, and on grounds of her own ill-health, the mother declined to return to the UK, and argued that owing to the child's close dependence on her the decision in Ardito should be followed and a return order should be refused. The petitioner, on the other hand, argued that the "Ardito principles" were too wide, and should be limited to cases where the respondent's problem was brought about by the laws of the country to which the child's return was sought. The Court declined to attempt any redefinition of what was said in the Ardito case, but held that in the particular circumstances the respondent's difficulties were insufficient to justify the withholding of a return order.

[10] Special reliance was placed on the decisions in Ardito, and in W v W, supra, because of their factual similarity to the present case. The respondent's difficulty here stemmed, not from any act of volition on her part, but from the right of the US immigration authorities to exclude her from that country and the likelihood that her visa application would duly be refused.

[11] Counsel then went on to draw my attention to the fact that while Article 20 of the Convention had been omitted from the Schedule to the 1985 Act, and had thus not been directly incorporated by that means into UK law, the Government of the day had given repeated assurances that the courts could still have regard to its terms. Reference was made to statements reported in Hansard to that effect during the passage of the relevant Bill through Parliament, first by the Lord Advocate on 5 March 1985 (at cols. 1261-2), and then by the Lord Chancellor on 28 March 1985 (at col. 1175). Subsequently, in Re K (Abduction: Psychological Harm) 1995 2 FLR 550, the Court of Appeal accepted that regard could indeed be had to Article 20, but pointed out (at page 557) that it could not be permitted to override the provisions of Article 13. More recently, of course, the Human Rights Act 1998 had come into force, obliging the Court as a public authority to act in a manner compatible with the provisions of the European Convention on Human Rights. This was illustrated by the case of TP and KM v United Kingdom 2001 EHRR 289, where the Strasbourg Court held that Article 8(1) of the ECHR was violated where a mother was in various ways denied a fair opportunity to participate in the decision-making process relative to the wrongful removal of her child into care.

[12] In the course of the hearing, however, counsel for the respondent accepted (i) that an adequate opportunity to participate in legal proceedings would not necessarily require to involve personal presence within the jurisdiction; and (ii) that in any event the rights conferred by Article 8(1) of the ECHR were not absolute, and might legitimately be the subject of interference under Article 8(2) where what was done was in accordance with the law, and necessary in a democratic society for one of the purposes listed in the Article. Such questions, she said, would be matters of fact and degree for the Court to assess in the circumstances of each individual case.

[13] Against that background, counsel submitted that, in the unique circumstances of this case, an operative return order could not properly be made while her client remained at risk of being denied the right to re-enter the USA. However wrong her previous conduct may have been, Article 13 required the Court to consider the welfare of the child in the circumstances now pertaining, and on the evidence it was clear (i) that the risk of the respondent's re-entry into the USA being refused was a real one; and (ii) that if that risk materialised, an order for J's return alone to the USA would expose him to a grave risk of psychological harm et separatim place him in an intolerable situation. The respondent had all along been J's primary carer, and indeed had been his sole carer since the end of 2002. J's primary attachment was to her, and owing to the length of the separation his relationship with the petitioner had dissipated to a significant degree. Professor Furnell's report confirmed that J was a normal, healthy and strikingly well-adjusted child, but that such a state of affairs could not be expected to last if he were to be detained for much longer in local authority care or, a fortiori, separated abruptly from the parent who had looked after him all his life. These conclusions were supported, not just by consideration of the events of the last nine months, but by Professor Furnell's observation of the evident bond between J and the respondent on a recent contact visit, and of the child's apparent distress and confusion when that visit ended. To the extent that Dr Cairns appeared to reach different conclusions from Professor Furnell in her report No. 6/15 of process, such conclusions should not be given significant weight. Dr Cairns was perhaps less experienced than Professor Furnell, and it was not clear that she had directly addressed the critical issues arising under Article 13(1)(b).

[14] It was important to bear in mind that the respondent's immigration difficulties were not necessarily insuperable. As confirmed by an official letter from the Section of the State Department responsible for dealing with Convention cases (No. 6/33 of process), the USA had an established procedure whereby individuals who were refused visas could still be permitted to enter the country on the ground of some wider public interest justification. This "Special Public Benefit Parole" system had been in place for a number of years, and according to the author of the letter no applicant referred from her Department in a Convention case had ever been refused parole entry to the USA. In theory, such entry might still be refused on grounds such as terrorist activity or complete destitution, but these possibilities seemed not to apply in the present case and the latter could be avoided altogether by an appropriate undertaking of support from the petitioner. On the advice of her solicitors, the respondent was now taking all steps open to her to pursue the necessary applications. Her visa application was imminent, and a senior official in the US Embassy in London was looking out for it; and contact had already been made with the State Department so that there would be no delay in seeking "Special Public Benefit Parole" if, as expected, the visa application was turned down. Once again, the petitioner could help in this connection by undertaking not to pursue or promote criminal charges against the respondent in relation to her wrongful abduction of J in December 2002. It had to be recognised, however, by reference to production 6/27, that the respondent might face two or three other felony charges on her return to the USA with which the petitioner had no connection, and that difficulties of this kind were not the concern of this Court. The only difficulty founded on for present purposes was that of obtaining leave to re-enter the USA in the first place.

[15] As regards the pending custody proceedings in Utah, the respondent had recently been successful in having a default judgement in the petitioner's favour set aside on technical grounds (see productions 6/11 and 6/28). Appropriate participation in these proceedings from now on would be essential if violation of Article 8(1) of the ECHR were to be avoided, and if J were not to be exposed to psychological harm or placed in an intolerable situation for the purposes of Article 13(1)(b) of the Convention. A major difficulty, for example, was that unless the respondent could secure re-entry to the USA, and thus retain a measure of contact with J, the central custody evaluation by psychologists on behalf of the Utah Court could not be properly conducted. In such circumstances, it would be wrong for the Court to send J back to a country which the respondent was barred from re-entering.

[16] Finally, counsel for the respondent asked me to consider varying, ad interim, the arrangements for J's care while in this country. The proposal was that he should be permitted to come out of foster care, and instead to live with the respondent in the house of responsible friends. The respondent would of course comply with any conditions that the Court might think appropriate in that regard, such as restrictions on the respondent and J leaving the property without supervision, or perhaps the giving of security by the respondent. A substituted arrangement of this kind would have the added benefit of facilitating increased contact between J and the petitioner.

The Petitioner's Position
[17] Mr Kelly's reply on behalf of the petitioner was equally clear and concise. His position was that the Court should make an immediate return order under Article 12 of the Convention, expressed in terms of the petitioner being authorised to uplift J from his present accommodation and return with him to the USA, and the thrust of his argument was that this was, on the authorities and on a proper analysis of the relevant facts, the only tenable outcome.

[18] Counsel began by attacking the respondent's position regarding her potential immigration difficulties, stressing that these plainly arose as a direct consequence of the respondent's own conduct in the past. She was apparently under threat of US felony charges on several counts, and had also lived in the USA unlawfully for several years after the expiry of a previous visa. Had the respondent faced up to these difficulties, the present problems would never have arisen, and of course the relevant authorities were now contemplating child-abduction charges in connection with her removal of J in December 2002. In addition, despite the availability of the "Special Public Benefit Parole" procedure, and the positive assistance offered by the State Department in Washington and the US Embassy in London, the stark fact was that the respondent had to date not even reached the first stage of applying for a visa. Initial enquiries during the English proceedings had identified the appropriate procedures as long ago as February of this year (as shown by productions 6/1, (sections B30 and D1), 6/2, 6/6 and 6/33), and the respondent could not seriously contend that she had acted with any degree of diligence in this connection. On the contrary, she had absconded with J and gone into hiding between February and August 2003, and had shown no apparent will to progress with what ought to have been straightforward procedures. From an early stage, the US authorities had shown a real desire to assist, and in all the circumstances the lack of tangible progress must be laid solely at the respondent's door. Neither the Embassy nor the State Department could do anything unless the respondent made the relevant approaches, and it was intolerable that the Court was being asked to hold everything up on account of immigration delays which the respondent alone had caused. The Court must take proper account of the effect of such delays on J, and also of the fact that he and the respondent had spent the best part of a year on the run. The stress suffered by the petitioner and his family had been considerable, and there was no obvious reason why further indulgence should be shown towards the respondent.

[19] Turning to the issues arising under Article 13(1)(b) of the Convention, counsel submitted that Dr Cairns was an experienced child psychologist; that her enquiries had been careful and extensive; and that she had properly addressed the salient practical questions within her field of expertise, leaving it to the Court to determine whether or not Article 13(1)(b) was brought into play. Professor Furnell, on the other hand, had encroached upon the function of the Court in seeking to draw Article 13 conclusions for himself. At paragraphs 5.8 and 5.26, Dr Cairns had judged the petitioner to have a more intuitive rapport with J than the respondent, notwithstanding the enforced separation over the last nine months, and had also found J to be more relaxed in the petitioner's company than in that of the respondent. Of particular importance here was the evidence of J's carers, as recorded in paragraph 4.2 of Dr Cairns' report, to the effect that the child had shown a surprising lack of distress in his current situation; that he had had no difficulty in forming an easy attachment to them; and that he was possibly the most secure, quickly-settled child that they had ever encountered in some 30 years of foster-caring. The ease and speed with which J appeared able to relate to adult carers was a factor of very considerable significance in the context of assessing the likely effect of a return order in this case, bearing in mind that such an order would be only temporary or transitional with a view to all substantive decisions regarding J's future care being taken by the Utah Court.

[20] Any erosion of the bond between the petitioner and J had been brought about by the respondent's wrongful act in abducting him, and Professor Furnell had fallen into error in treating such erosion as a material factor in reaching his conclusions. Under the Convention, the respondent could not be permitted to benefit from her own misconduct in this way. In any event, even Professor Furnell acknowledged (at page 22 of his report) that "another constant adult" might satisfactorily compensate for the respondent's absence in the longer term, and in all the circumstances there was no reason why the petitioner himself should not be regarded as fulfilling that role. The affidavits from the petitioner and several other witnesses showed that J would be in a caring and supportive environment in Utah on his return, and it was significant that, despite past allegations against the petitioner, the respondent founded only on her own immigration difficulties for the purposes of Article 13(1)(b) of the Convention. In the petitioner's submission, however, continued separation from him should be regarded as more detrimental to J's present and future development than separation from the respondent.

[21] With respect to the Utah custody proceedings, counsel laid stress on the fact that the respondent had already participated successfully, through local lawyers, in having a default decree set aside. She was now in a position to participate further on substantive issues, with or without re-entry to the USA. Production 7/23 made it clear that the Utah Court would send a psychologist to Scotland as part of its custody assessment, and of course in the event of the respondent's immigration difficulties being overcome she would have the added option of participation at local level. The Convention favoured the Courts of the State of habitual residence for the sound practical reason that that would be the State in which most, if not all, of the relevant evidence might be expected to be found. There were very significant factual disputes between the parties regarding events preceding the respondent's disappearance with J in December 2002, and it was not realistic to expect the petitioner and all his witnesses to travel to Scotland to testify on these matters. There was no evidence to suggest that the Utah Court would be unable or unwilling to take the petitioner's evidence by video link or the like, nor was there any reason to suppose that the Utah Court would fail to make due allowance for the respondent's situation following a return order in the present proceedings.

[22] In reality, there was good reason for confidence that the respondent's application for re-entry into the USA would ultimately succeed. "Special Public Benefit Parole" had apparently never been refused in a Hague Convention case, and the respondent had advanced no good reason to anticipate its being refused here. The onus was on the respondent to make out a case for the withholding of a return order. She had failed to do so, and should not be allowed to benefit from self-induced difficulties in connection with her own re-entry to the USA.

[23] Against that background, counsel submitted that the relevant authorities militated strongly in favour of an immediate return order being made in this case. The respondent's citation of authority had been incomplete, and in particular she had not emphasised the very high threshold that had to be reached before Article 13 considerations could be held to override the Court's primary duty under Article 12.

[24] In Re C (A Minor) (Abduction) 1989 1 FLR 403, the Court of Appeal considered the proper relationship between Articles 12 and 13. At page 410, Butler-Sloss L.J. said:

"The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. ... Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. As Balcombe L.J. said in Re E (A Minor) (Abduction) 1989 1 FLR 135, 142:

'... The whole purpose of this Convention is ... to ensure that parties do not gain adventitious advantage by either removing a child wrongfully from the country of its usual residence, or having taken the child, with the agreement of any other party who had custodial rights, to another jurisdiction, then wrongfully to retain that child.'"

[25] At page 413, Lord Donaldson M.R. discussed the matter in these terms:

"We have also had to consider art. 13, with its reference to 'psychological harm'. I would only add that in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned. This is, I think, recognized by the words 'or otherwise place the child in an intolerable situation' which cast considerable light on the severe degree of psychological harm which the Convention has in mind. It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country ... can resume their normal role in relation to the child".

[26] Re L (Child Abduction) (Psychological Harm) 1993 2 FLR 401 was a case where a British mother wrongfully removed a child of 19 months from the family home in Texas. A petition for a return order was opposed on Article 13 grounds, the respondent maintaining that her visa application had been refused by the US immigration authorities, and that (on the evidence of two psychologists) separation of mother and child would in the circumstances create a grave risk of psychological harm. In nevertheless granting the order sought, Hollis J. noted that, on the authorities, the test to be met under Article 13 was a very high one, and considered that it had not been met in that case. For one thing, it was very likely that the supposed immigration difficulty would be overcome. For another, even if the respondent's application failed, the child would be well cared for by the petitioner and his family.

[27] In Re K, supra, which the respondent had cited with reference to human rights issues, the abducting mother had begun by taking the children to a women's refuge. Having then left the USA, she could only return there as a visitor, and it was argued that enforced separation from the mother would place the abducted child in an intolerable position. This argument was rejected, both at first instance and on appeal, and it was further held that even if the mother could not re-enter the USA the requirements of Article 13 would not be met. In that situation, the child would be cared for by her father and his family, and the Texan Court could properly be left to deal with the parties' competing custody claims in a responsible and appropriate manner. On the human rights issue, Leggatt L.J. said (at page 557):

"... it seems to me that there is obvious objection to adopting such a construction of Art 20 as would have the effect of overriding, or materially altering, the scope of any of the other Articles and in particular Art 13(b). It may well be that the court, as the Lord Chancellor indicated it should, will 'have regard to Article 20' in the sense of seeking to construe other Articles, such as Art 13(b), in such a way as not to infringe human rights. Further than that, however, it does not go."

[28] Re C (Abduction: Grave Risk of Psychological Harm) 1999 1 FLR 1145 was a case where there was a risk of the abducting mother being prosecuted in California if she returned there with the child. At first instance, the judge held that to be a sufficient reason for refusing a return order. This decision was reversed on appeal, on the basis (i) that the judge had failed to recognise the very high threshold which applied under Article 13; (ii) that in any event the mother had created the difficulty by her own conduct, on which it would be wrong to allow her to found; and (iii) that it would be for the Californian Court, in dealing with child care issues, to make appropriate allowance for the mother's situation. At pages 1152-3, Ward L.J. reviewed the authorities on the fundamental objective of the Convention, and on the very high standard which a respondent must meet for the purposes of Article 13. At page 1154, he confirmed that:

"... the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity much greater than (was) inherent in the inevitable disruption, uncertainty and anxiety (following) an unwelcome return to the jurisdiction of the Court of habitual residence."

[29] Re C (Abduction: Grave Risk of Physical or Psychological Harm) 1999 2 FLR 478 was another case where the return of a child to the State of its habitual residence (there Cyprus) was refused at first instance on the ground that the child would thereby be separated from its mother. On appeal, this was held insufficient to bring Article 13(1)(b) into play, the difficulty being caused by the mother's refusal to return to Cyprus. Although counsel for the petitioner in the present case recognised that that decision could be distinguished on its facts, he nevertheless relied on it as illustrating the proper approach to be taken by the Court on Convention issues, and in particular on the interaction between Articles 12 and 13. He also relied, for the same purposes, on the opinion of the Family Court of Australia in Director-General, DFYCC v Bennett, supra, at paragraph 49.

[30] Against that background, counsel submitted that the respondent had failed to make out a relevant case under Article 13; that in any event, I should exercise my discretion in the petitioner's favour; and that an immediate return order should be pronounced. This was, counsel said, a case crying out for the return of J to the USA. The affidavits of the petitioner, and of many who knew the family before J was abducted, confirmed that the child would be well looked after on his return. They also cast grave doubt on the respondent's allegations of domestic abuse, pointing out inter alia that a court summons in that connection had been dismissed for want of prosecution. By contrast, the affidavits relied on by the respondent all appeared to emanate from the same source, namely hearsay from the respondent herself. In this context, a telling comparison could be made between such hearsay in Michelle Jensen's affidavit No. 7/15 of process and the positive evidence in favour of the petitioner which appeared in her fuller affidavit No. 6/25.

[31] As regards the appropriate remedy here, counsel strongly opposed the respondent's proposal that the operation of a return order should be suspended to await the outcome of her application for re-entry to the USA. He also opposed her alternative suggestion that the Court might allow a fixed period for the respondent to obtain permission to re-enter the USA, failing which the petitioner's request for a return order would be refused. No such options arose at all where (as here) no grounds for potentially refusing a return order were made out under Article 13(1)(b) of the Convention. In any event, the proposals were flawed in important respects. Inevitably, they involved further delay in Scotland, and Dr Cairns in particular had made it clear that further time in local authority care awaiting a final decision regarding J's future could well be harmful to the child. In Dr Cairns' view, what mattered was that the necessary decisions concerning J's future should be taken by a Court as soon as practicable, and by comparison it was of much lesser importance which parent would succeed in obtaining an award of custody. In any event, the Court could not properly seek to put pressure on the US immigration authorities, bearing in mind that it could not possibly be aware of all the facts and circumstances that would be relevant to the exercise of these authorities' discretion. Nor could the Court properly delegate its decision under the Convention to third parties. That would, it was argued, be the result of either of the respondent's two alternative proposals, since both of them made a return order dependent on the success of the respondent's application for leave to re-enter the USA. In any event, even if the respondent ultimately failed to obtain such leave, it was submitted that that failure would be wholly attributable to her own conduct in the past, and to her lack of urgency in pursuing the relevant applications. Production 6/27 showed that several criminal charges were pending before the respondent ever left the USA in December 2002, and it was believed to be this fact that had caused her to do so, as opposed to any alleged domestic difficulties with the petitioner.

[32] Counsel also argued that the decision of the Inner House in W v W, supra, was distinguishable on its facts, because the only apparent difficulty there was that the mother had not yet made a visa application. In addition, while in that case matters had in the end been satisfactorily resolved, the idea of suspending a return order had no parallel, so far as counsel's researches went, in any other jurisdiction.

[33] Further, against the background of the respondent's unlawful and irresponsible conduct, including the ease with which she appeared able to obtain multiple passports under different names (see productions 6/12, 6/15, 6/31, 7/9 and 7/21, together with paragraphs 5 and 10 of the respondent's Answers), the suggestion that J should be released from local authority care to live in the same household as the respondent could not be seriously entertained. Significant public expense had been incurred in tracing the whereabouts of the respondent and J; protective orders were now in place; and it would be unthinkable to run the risk of the respondent absconding with J again.

[34] Finally, counsel confirmed that his client would be prepared to give the court whatever undertakings might be thought necessary for the purposes of securing J's return to Utah. In particular, he was in a position to give two material undertakings on his client's behalf at this stage, namely (i) that the petitioner would not pursue or promote the prosecution of the respondent on child-kidnapping charges; and (ii) that if any indication of financial support for the respondent proved necessary to avoid her being regarded as completely and totally destitute for the purposes of entry into the USA, the petitioner would take such reasonable steps as were open to him in that connection. With regard to the first of these undertakings, however, it was pointed out that the matter was already in the hands of the relevant authorities, and that the future attitude of the petitioner might therefore be of no practical effect. With regard to the second, counsel stressed (a) that there was no evidence that the respondent had ever been financially unable to look after herself; and (b) that the petitioner himself had a limited income and substantial outgoings, and that there was accordingly a limit to what could reasonably be expected of him financially.

Discussion
[35] Beginning with the law, there was in the end little dispute between the parties regarding the general principles to be applied in a case of this kind. The fundamental objective of the Convention and the primary duty of the Court in that regard under Article 12, the very high threshold to be met by a respondent under Article 13(1)(b), and the prima facie need to prevent a respondent from relying on his or her own wrongdoing to thwart the fundamental objective of the Convention, are in my view all clearly vouched by the authorities which were cited in the course of the hearing. It is true that the English decisions are technically of no more than persuasive value in this jurisdiction, but many of them are familiar landmarks in this field of litigation and I am not aware of any of them having been judicially doubted or disapproved on this side of the border. It may have been for this reason that, with the exception of W v W, supra, neither party chose to refer to past Scottish decisions in Convention cases, although I suspect that the (perhaps unwarranted) reference to the Scottish courts in this area as "passive" at page 147 of Beaumont & McEleavy's textbook may also have had something to do with it.

[36] I venture to add, however, that in my opinion it is important to recognise that Article 13(1)(b) refers to a grave risk that the child's return (my emphasis) would expose him or her to inter alia psychological harm. It is to the return itself that attention appears to be directed here, and I therefore question whether the Convention either permits or encourages speculation as to the possible consequences of post-return events which may or may not occur in the future. Another important consideration is that the return envisaged under Article 12 must not be confused with an award of custody in favour of the non-abducting party. On the contrary, the making of a return order is intended to re-assert the child care jurisdiction of the courts of the State of the child's habitual residence. For Convention purposes, therefore, the return and its consequences may be relatively short-lived because, as Lord Donaldson M.R. pointed out in discussing the matter of psychological harm in Re C, supra (1989) at page 413:

"It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the country ... can resume their normal role in relation to the child".

[37] Against that background, I turn first to the question whether the respondent has proved that her apparent difficulties with the US immigration authorities are sufficiently real and material to prevent her from returning to Utah to contest the pending custody proceedings there. On the evidence before me, I consider that that question must be answered in the negative. There seems little doubt that the respondent's visa application will be unsuccessful. However, even if she could legitimately overcome the fact that her difficulties in that regard stem entirely from her own past conduct, I am not satisfied that that would be the end of the story. On the contrary, it is confirmed in several of the productions, notably the State Department's letter No. 6/33 of process, that the USA has an established "Special Public Benefit Parole" system which may serve to permit Convention abductors to re-enter the country for the purpose of contesting relevant custody proceedings. The impetus would come, on application, from the State Department itself, and in my view it is highly significant that parole has never yet been refused in a Convention case. In addition, it seems to me that the petitioner's undertakings recorded at paragraph [34] above must inevitably increase the prospects of a favourable outcome. Accordingly, on the evidence, I hold that the respondent has failed to prove the existence of any material impediment to her successfully re-entering the USA under the scheme, assuming a measure of urgency on her part in implementing the necessary procedures. On that basis, as counsel for the respondent accepted, neither branch of Article 13(1)(b) could be made out and it would be the duty of the Court under Article 12 to order J's return to the USA forthwith.

[38] The next matter to be addressed is whether, if I were wrong on the foregoing issue, the respondent has proved the existence of a grave risk that the granting of a return order would expose J to psychological harm or place him in an intolerable position. In my opinion, she has not done so. It goes without saying that any sudden transfer of a young child from one country to another, and away from the parent who has most recently looked after him, will risk a measure of disruption and anxiety, and perhaps even some degree of psychological harm. However, the threshold which the respondent must reach for the purposes of Article 13(1)(b) of the Convention is considerably higher than that. As the Court of Appeal in England has repeatedly confirmed, the requirements of Article 13(1)(b) will only be satisfied if the likely psychological harm is severe, or the consequential position intolerable, in the sense of going well beyond the level of disruption and anxiety which may be thought inherent in removing a child from current care arrangements and sending him or her back to a different country.

[39] In the present case there are a number of considerations which lead me to conclude that the relevant test has not been met. First, I am unable to accept that the making of a return order here would have the effect of separating J abruptly from the day-to-day care of his mother the respondent. That step has already been taken, in the form of the protective order pronounced by Lord Wheatley on 26 August 2003, whereby J was placed in the care of the local authority and de facto prevented from continuing to live in the same household as the respondent. Second, one of the most striking features of the evidence in this case is the apparent ease and speed with which J, at the age of only 27 months, has settled in with his foster-carers since the foregoing order was pronounced. Both Dr Cairns and Professor Furnell draw attention to this in their respective reports. Sections 4.2, 5.3-6, 6.1.3.4 and 7.2-3 of Dr Cairns' report are in my view of particular significance have, as is Professor Furnell's description (at page 18) of his first visit to the foster-carers' home on 10 September and his confirmation (at page 23) that "another constant adult" might satisfactorily replace the respondent's recent role in J's life. It may therefore be said with some confidence that, in the short term at least, J is a child for whom separation from his mother is not unduly distressing, and whose ability to settle easily and quickly with other adult carers is not in doubt.

[40] It may well be that, following a recent contact visit by the respondent, J exhibited some signs of confusion and uncertainty. However, contact visits per se are notoriously capable of unsettling children by disturbing their regular routine and holding out a fleeting illusion of permanence that is then abruptly withdrawn. By proposing a reduction in the frequency of such contact visits in this case, the local authority may have been trying to minimise such risks. Be that as it may, I am struck by the relatively limited reaction said to have been exhibited by J in this context, and by Professor Furnell's confirmation (at page 21) that J thereupon settled back, within a matter of minutes, into his previous happy attachment with the foster-carers. I am also impressed by Dr Cairns' apparent reluctance to make too much of this single incident (cf. Paragraphs 5.7 and 5.17 of her report), and note with interest her observation at paragraph 4.9.3 that a similar reaction did not occur on the next contact visit by the respondent in early October. Dr Cairns would accordingly seem to be better placed than Professor Furnell to evaluate the significance of these matters, and I regard her approach as the more persuasive in this context.

[41] Third, it has to be borne in mind that the effect of a return order at this time would be to restore J into the care of the petitioner and members of his family until such time as the Utah Court made an interim or permanent order to the contrary. In that context, I am satisfied on the affidavit evidence of the petitioner and his family, and of others who knew J and were familiar with the parties' household prior to 4 December 2002, that if the child were to be returned to Utah now he would re-enter a caring and supportive environment. Dr Cairns' comments (at paragraphs 5.8, 5.21, 5.26 and 7.4) about J being more relaxed with the petitioner than with the respondent, and about the petitioner apparently being the more intuitive parent, seem to me to afford further reassurance in this area.

[42] As previously noted, Dr Cairns' main concern appears to be that a prolongation of the current situation in which J is in care and remote from both parents should if possible be avoided. On the evidence before her, she does not regard either parent as obviously unsuitable to have the care of J at the present time, and in her view a speedy resolution of the custody issue is of more pressing importance than the identity of the parent ultimately preferred. As it seems to me, Dr Cairns' approach is fair and restrained, and tends to suggest that a return order here could even have some beneficial effects from J's point of view. It would at once bring to end the current temporary arrangement whereby J is in local authority care. It would return him to the country where he was born and spent the first eighteen months of his life. And it would enable the Utah Court to take appropriate interim measures, if so advised, to ensure J's welfare pending resolution of the custody proceedings which have been raised. In theory, such measures might even involve removing J from the day-to-day care of the petitioner, but the important point is that following a return order the full extent of the child care jurisdiction of the Utah court would be restored.

[43] With the greatest of respect to Professor Furnell, I do not find the contrary reasoning and conclusions in his report compelling. It seems to me that the report gives insufficient weight to the evidence of J's happy and well-adjusted personality, and of his ability to adapt to changes in his caring environment. Separation from the respondent has apparently been tolerated by J to a remarkable degree. Furthermore, in my view, the report accords undue weight to the effects of J's enforced separation from the petitioner since last December, bearing in mind that that state of affairs is attributable to the wrongdoing of the respondent. In Re C, supra, (1999 2 FLR), Thorpe L.J. said at page 487:

"In many cases, a balanced analysis of the assertion that an order for return would expose the child to the risk of grave psychological harm leads to the conclusion that the respondent is in reality relying upon her own wrongdoing in order to build up the statutory defence."

In my judgement that observation is apt in the circumstances of the present case, and to the extent that Professor Furnell appears to advocate maintaining the status quo unlawfully created by the respondent's conduct I would respectfully disagree. Prima facie the respondent should not be permitted to derive benefit from her own unlawful conduct in the absence of clear and compelling evidence that the making of a return order would be seriously harmful to the child.

[44] Furthermore, I think that counsel for the petitioner was well-founded in questioning the extent to which the conclusions of Professor Furnell's report are couched in the terminology of the Convention. It is ultimately for the Court to determine whether, in the circumstances of a given case, grounds for withholding a return order have been made out under Article 13, and in my view the Court's freedom of action in this regard cannot be fettered by apparent "Convention conclusions" put forward by psychologists or other skilled witnesses. Obviously the Court will take full account of the views and findings of such individuals within the scope of their expertise, but it must always be for the Court to judge, not only whether such views and findings appear to be soundly based, but also whether, on a consideration of the whole of the available evidence including any expert reports, grounds for withholding a return order have or have not been established. In this case it is relevant to note that, notwithstanding his recourse to Convention terminology, Professor Furnell at (page 23 of his report) appears to focus considerable attention on what might be regarded as the long-term merits of the custody dispute between the petitioner and the respondent. As counsel for the respondent submitted, such a focus is not legitimate in proceedings under the Convention, and in my view this serves to underline the importance of maintaining the independence of the Court's approach to the determination of Convention cases.

[45] So far as the respondent's reliance on Article 20 of the Convention is concerned, I am not persuaded that any human rights violation has been made out in the circumstances of this case. I have already approached the issues arising under Article 13 on the footing that Article 20 falls to be taken into account in that connection, notwithstanding its omission from the Schedule to the 1985 Act. In particular, I have proceeded on the basis that any denial of the respondent's right to participate effectively in proceedings relating to J's custody might arguably constitute a violation of Article 8(1) of the European Convention on Human Rights, and that any such violation would, by virtue of Article 20 of the Convention, require to be taken into consideration by the Court. In this context, I note what Leggatt L.J. said in Re K, supra on the application of Article 20 (quoted above at paragraph [27]), but in addition recognise that since the date of that decision certain obligations have been imposed on this Court under Section 6 of the Human Rights Act 1998. Nevertheless, I am unable to accept that any justification has been shown for refusing a return order in this case on human rights grounds.

[46] As regards the present proceedings, the respondent is currently resident in Scotland and has been a full participant since Answers were lodged on her behalf on 2 September 2003. She is represented by Scottish solicitors and counsel, and personally attended the hearing on 9 and 10 October. In these circumstances, she can in my view have no complaint under Article 8(1) of the ECHR relative to the degree of her participation in the current process. In addition, it is hard to see how the making of a return order in respect of J, even if that were to involve his being separated from the respondent in the shorter or longer term, could amount to a violation of Article 8(1) either. By virtue of Article 8(2), interference with rights guaranteed under Article 8(1) may be justified where it is in accordance with the law and necessary in a democratic society in the interests of one or more of the factors listed in the Article. In my view, there can be no doubt that a return order pronounced under Article 12 of the Convention would be in accordance with the law of the United Kingdom and, as the Strasbourg Court held at paragraph 69 of its Decision in TP and KM v United Kingdom, supra, with reference to the statutory power conferred on local authorities to take children into care, it seems to me that the Court's power to make return orders under the Convention must a fortiori be regarded as necessary in a democratic society in the interests of the health, morals, rights and freedoms of abducted children such as J and of deprived parents such as the petitioner. It would be strange indeed if the respondent could successfully assert a right to respect for family life in a case like this, where her own actions since December 2002 have been calculated to destroy the family life which J formerly enjoyed with her and the petitioner. This is not even a case where an issue arises concerning the extent of the margin of appreciation to be afforded to the relevant authorities in an individual State. On the contrary, what is in issue here is the operation of a widely-subscribed international Convention designed for purposes which in my view cannot conceivably be regarded as anything other than necessary and appropriate in the civilised world.

[47] With respect to the situation in Utah subsequent to the making of a return order in this case, I must again decline to hold that any violation of a relevant right under Article 8(1) of the ECHR has been made out. For one thing, as already discussed at paragraph [37] above, the respondent would appear to have strong prospects of securing re-entry to the USA under the "Special Public Benefit Parole" scheme, in which event it is acknowledged on her behalf that no relevant problem would arise. And perhaps more importantly, as already discussed at paragraphs [36] and [42] above, the practical effect of a return order will be to restore the full child care jurisdiction of the Utah Court. In that connection, there is no evidence to suggest any likelihood of that Court failing to afford the respondent the fullest opportunity, consistent with her circumstances, to participate in the custody proceedings, or otherwise failing to act in a fair and responsible manner. As I understood counsel for the respondent to accept, participation in legal proceedings does not necessarily require a person to be physically present within the jurisdiction of the Court, and in this case there is evidence that the normal custody evaluation procedures of the Utah Court allow for enquiry and assessment to be made by a Court-appointed expert in any relevant foreign country. Accordingly, whether physically present within the jurisdiction or not, it will be open to the respondent to argue in the Utah custody proceedings that separation from her is harmful to J's emotional development, and that a residence order in her favour would be in the child's best interests. And in the face of such arguments, the Utah Court will have power to make such orders as it considers necessary to ensure that J's best interests are appropriately safeguarded. In these circumstances, echoing the approach taken by Leggatt L.J. in Re K, supra, at page 557, I conclude that no relevant denial of human rights has been made out by the respondent by reference to the situation in Utah.

[48] Even if I had reached the opposite conclusion on the Article 13 issue, I would still not have been prepared to exercise my residual discretion in the respondent's favour. Whatever might be said as to the likely detrimental effect of a return order on J, it seems to me that the alternative, namely keeping him in local authority care in Scotland for the foreseeable future, and perpetuating his enforced separation, not just from the petitioner and from the country of his birth, but from the respondent herself, would be equally detrimental to his future psychological health and welfare. As counsel for the respondent pointed out, such a comparative exercise may be inappropriate at the stage of assessing whether or not an Article 13 condition exists in the first place. In my opinion, however, it is not merely appropriate, but essential, for the Court to consider the whole picture when exercising its discretion whether to make a return order or not. "Countervailing issues" were held to justify the making of a discretionary return order in Director-General, DFYCC v Bennett, supra, and I would have regarded the "countervailing issues" in the present case as, on balance, sufficient to preclude the exercise of my discretion in the respondent's favour. Apart from the likely detrimental effect of allowing the present unsatisfactory situation in Scotland to continue indefinitely, and the potential benefits liable to flow from J's return to Utah, these issues in my view include the respondent's sustained efforts to derive benefit from her own unlawful actings, and to manipulate for her own ends a situation which she herself has created. In my opinion, the Court should be very slow, in the absence of clear and compelling justification, to sanction such conduct on the part of an abducting parent, and in the circumstances of this case I would have declined to take that course.

[49] For all of these reasons, I do not consider that the respondent has discharged the onus of justifying the refusal or suspension of a return order in this case. I accept that performance of the Court's primary duty here under Article 12 may well give rise to some degree of disruption, anxiety and even psychological harm to the child. Nevertheless, on the evidence before me, I am not satisfied that any anticipated psychological harm to J would be sufficiently serious to justify the withholding of a return order under Article 13(1)(b), nor am I satisfied that J's return to the USA would place him in an intolerable position. Moreover, I am unable to hold that any grave risk of exposure to such harm, or to other intolerability, has been shown to exist at the present time. That is, I think, sufficient for the disposal of this matter in the petitioner's favour. If it were necessary to go further, however, I would hold that no relevant problem has been shown to arise from the proposed return of the child to the USA. As it seems to me, any problem in this area would arise at a later date in circumstances remote from the return itself, namely in the event of (i) the respondent failing (by reason of her own past and/or present conduct) to secure re-entry into the USA, and (ii) the Utah Court then failing to afford her a fair opportunity, consistent with her situation, to participate in the custody proceedings which are now pending.

Decision
[50] In the foregoing circumstances, I now order that J be returned to the United States of America forthwith in terms of Article 12 of the Convention, and to that end (i) direct Stirling Council, Children's Services Social Work, to make appropriate arrangements to facilitate the transfer of the child into the care and control of the petitioner, and correspondingly (ii) authorise the petitioner to uplift the child pursuant to such arrangements and to return with him to the USA.

[51] As regards the respondent's suggestion that I should suspend the operation of such an order pending the successful resolution of her application to re-enter the USA, or that I should defer making any such order in the meantime, I have to say that I regard both alternatives as inappropriate in the circumstances of this case. In principle, I consider that it would be wrong, and possibly counter-productive, for this Court, from a position of incomplete knowledge, to attempt to influence a decision of the immigration authorities of a foreign State on contentious issues. A fortiori, it would in my view be wrong for the Court effectively to delegate its decision under the Convention to such authorities. For practical purposes, moreover, I take the view that any further delay at the present time would merely exacerbate the problem identified by Dr Cairns and Professor Furnell, namely J remaining in care in Scotland for an extended period in circumstances where neither parent has more than fleeting contact with him. And in any event, as already discussed earlier in this Opinion, I am not persuaded that the respondent would have any legitimate ground of complaint under the Convention if, at a date subsequent to J's return to Utah, the US immigration authorities were to decline her application for re-entry to that country.

[52] Finally, I have no hesitation in rejecting the proposal that, ad interim, the arrangements for J's care should be relaxed to permit him to live with his mother again in the home of responsible friends. In my opinion, the respondent has shown herself to be wholly untrustworthy and unreliable in her dealings with J since December 2002. She wrongfully abducted him from the USA at that time, cutting off all contact between him and the petitioner; she wrongfully absconded from the jurisdiction of the English Courts in the early part of this year, going into hiding with J in Scotland; there is evidence to suggest that, when ultimately traced, she was on the point of leaving with the child for Thailand; she is a person who has in the past obtained multiple passports under different names; and in all the circumstances I consider that to implement her interim proposal would expose J to an immediate risk of further abduction out of the jurisdiction of this Court. Given the past history of the respondent, I am unable to identify any conditions by which that serious risk might satisfactorily be overcome, and accordingly, in my judgment, the current interim arrangements must remain in force notwithstanding their obvious drawbacks. However, in view of the decision which I have reached on the main issue in this case, it may be that these arrangements will not require to be maintained for very much longer.