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AJ, Re for Declarator Under the Child Abduction and Custody Act [2004] ScotCS 203 (13 August 2004)

OUTER HOUSE, COURT OF SESSION

P830/04

OPINION OF LADY PATON

in the petition of

Petitioner;

for

Declarator under the Child Abduction and Custody Act 1985

________________

Petitioner: Davie, Advocate; Drummond Miller W.S.

Respondent: No appearance

13 August 2004

Whether children wrongfully removed from Scotland
[1] The petitioner has two sons, S aged 13 and B aged 11. The respondent is their father. The petitioner seeks declarator that:

"the removal on or about 21 September 2003 by the respondent of the children S and B from Scotland to the United States of America and their subsequent retention there was wrongful within the meaning of Article 3 of [the Convention on the Civil Aspects of International Child Abduction 1980]".

[2] A motion for declarator came before the Vacation Court at a first hearing on 20, 22, and 23 July 2004. Mrs Davie, Advocate, appeared for the petitioner. There was no appearance for the respondent, who was at that time living in the United States with his new wife, and with S and B. However the respondent sent a letter to the Court of Session dated 13 July 2004, stating his position.

Brief history of the parties' marriage and divorce
[3] The petitioner (date of birth 21 November 1960), a Scotswoman with two children from a previous relationship, married the respondent (date of birth 23 February 1959), an American, in Scotland on 2 November 1990. They had two sons, S, born on 31 January 1991, and B, born on 12 March 1993.

[4] The parties' relationship deteriorated. The children were taken into care for periods: S, from mid-2001 to early 2002; B, from mid-2001 to later in 2002. Subsequently, the children went to live with their father, the respondent. By that time, the parties were separated, and the respondent was living with another woman.

[5] The respondent raised an action of divorce in the Court of Session. The parties were divorced on 11 March 2003. At the date of their divorce, the respondent lived in Wick with the children and the other woman. The petitioner lived in Kilbarchan. The divorce interlocutor provided inter alia:

"8. Interpones authority of the court to the joint minute no.21 of process and in respect and in terms thereof makes a residence order in respect of the children S and B and requires that they live with [the respondent];

9. Makes a contact order in respect of the said children, S and B, and allows contact between them and [the petitioner] every two weeks, said contact to be supervised by the Social Work Department of Highland Council, Council Buildings, Glenurquhart Road, Inverness, said supervised contact to take place alternately in Wick and in Inverness, the times and precise date and place of such supervised contact to be agreed between parties in consultation with the said Social Work Department.

10. Ex proprio motu makes a contact order in respect of the said children, S and B, and allows contact between them and [the petitioner] on Friday 14 March 2003 for a period of two hours, between the hours of 2.00 p.m. and 4.00 p.m. at the NCH Centre, 5-6 Quayside Court, Thornbush Road, Inverness, said contact to be supervised on this occasion only by Mrs. Brenda Robson, The Old School House, Ratho."

Contact since 11 March 2003
[6] The petitioner did not succeed in having contact with her elder son, S. As she explained in paragraph 8 of her affidavit dated 18 May 2004, number 6/1 of process:

"My elder son S indicated that he did not wish contact with me, but it was felt by myself and the Child Psychologist Brenda Robson, that the boy's mind had been poisoned against me by his father."

[7] Accordingly, the petitioner has not had contact with S since mid-2001, when he went into care.

[8] The petitioner did manage to have some contact with her younger son B. The petitioner's affidavit, the respondent's letter, and a letter dated 21 July 2004 from Highland Council, number 6/4 of process, give a picture of an initial contact visit in Wick on 28 March 2003; a subsequent contact visit in Inverness on 11 April 2003; one or two further visits; and a final visit on 1 May 2003. Both the petitioner in her affidavit dated 18 May 2004, and the respondent in his letter dated 13 July 2004, estimated the number of contact visits at about five or six.

[9] Following upon the last contact visit on 1 May 2003, the petitioner's health deteriorated. She was unable to travel to Wick. She went into hospital with suspected breast cancer. Fortunately the lumps removed were benign. However as a result of her poor physical health, possibly complicated by a vulnerability in her mental health (as yet undiagnosed) she was unable to travel from Kilbarchan to Wick in order to see her son B. A letter from her general practitioner Dr. Higgins dated 8 August 2003, number 6/5 of process, confirmed that the petitioner was not fit to travel to Wick in August and September 2003. The result was that the petitioner did not actually have any contact with B in terms of the court's interlocutor during May, June, July, August and September 2003, apart from some telephone calls, the last of which took place (according to Highland Council) on 7 June 2003.

The respondent's removal of S and B to the United States
[10] Towards the end of September 2003, the respondent and his new wife moved from Wick, Scotland to Beeville, Texas, in the United States of America, where they now reside. They took S and B with them.

[11] The petitioner was given no warning about the removal of her sons to the United States. As the respondent explained in his letter to the Court of Session dated 13 July 2004:

"I would have asked for [the petitioner's] permission to allow me to take S and B to the USA had I not been of the opinion that she would have unreasonably withheld her agreement."

[12] The respondent not only did not warn the petitioner of the departure to the USA, but he left no forwarding address.

The petitioner's application under the Hague Convention
[13] The petitioner, having discovered that the respondent had left Scotland with the children, made an application dated 29 October 2003, number 6/3 of process, for the return of the children under the Hague Convention. She gave the respondent's address as "Beeville, Texas, USA", although she did not know his precise address. She was given the assistance of an attorney in the USA, Mr. Buecker. Mr. Buecker began proceedings in America.

[14] Subsequently, by the use of the internet, the petitioner managed to locate S and B at their school in Beeville, Texas, USA. She sent them affectionate e-mails, dated 11, 22, and 31 January and 1 February 2004. She also located the respondent's new address.

[15] According to counsel for the petitioner, the e-mails to S and B had to stop when the respondent found out about them, and instructed the school not to allow the boys to receive the e-mails.

American attorney's request for a declarator by a Scottish Court
[16] Mr. Buecker, the petitioner's American attorney, contacted the petitioner's solicitors Messrs. Cairns & Co., Greenock. Some of the issues discussed are recorded in a letter (number 6/9 of process) dated 9 February 2004 from Messrs. Cairns & Co. to Messrs. Drummond Miller W.S., as follows:

"We have had extensive discussions with [Mr. Buecker] who has asked whether or not we can go back to the Court of Session for some kind of interlocutor confirming that [the respondent] acted unlawfully in removing the children in terms of section 2(3) of the Children (Scotland) Act 1995.

The American attorney considers that this would be of the greatest help to him and might be persuasive enough for an American Judge to order that the children be returned to Scotland and the jurisdiction of our courts.

We have already forwarded to you a copy of the Legal Aid Certificate allowing for alteration in the terms of the contact awarded, and wonder if there is any way that this matter can be brought back before the Court of Session.

Our own initial view was that the court would not pronounce any interlocutor which it could not enforce, but standing the Hague Convention, it seems to us that a decree of the Court of Session could be enforced in a court in America.

The American attorney has asked us to deal with this matter as a matter of urgency, as at our instigation he is seeking an interdict to stop [the respondent] removing the children from Texas where perhaps they will be lost in the vastness of America ..."

[17] A letter (number 6/8 of process) to Messrs. Cairns & Co. dated 25 March 2004 from the Justice Department of the Scottish Executive (the "central authority" in Scotland for the purpose of the Hague Convention) referred to Mr. Buecker's request in the following terms:

"I refer to our previous telephone conversation when we discussed Ben Buecker's request for an interlocutor or an order confirming that [the respondent] acted unlawfully in removing the children in terms of s.2(3) of the Children (Scotland) Act 1995. You stated that you could not envisage any way to get this matter back into the Court of Session nor could Fiona Moore (Drummond Miller) in her letter dated 25 February 2004 (copy enclosed). I should be grateful if you would refer to section 8 of the Child Abduction and Custody Act 1985. This section allows for any person appearing to the court to have an interest in the matter to make an application for a declarator that a removal was wrongful within the meaning of Article 3 of the Hague Convention. Given that the Central Authority for Scotland is entirely neutral in abduction cases we are not in a position to apply for such a declarator. I would be grateful if you could liaise with Drummond Miller on the possibility of applying for such a declarator ..."

[18] Counsel's opinion was sought, and the current petition drafted. The petitioner's motion for declarator (in which the petitioner was represented by another counsel, Mrs Davie) came before the Vacation Court in terms of rule 70(6) on 20, 22, and 23 July 2004.

Relevant statutory provisions
[19] The Children (Scotland) Act 1995 provides:

"Section 1(1): Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility ...

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; ...

but only in so far as compliance with this section is practicable and in the interests of the child ...

Section 2(1): Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right -

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis ...

(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below ...

(6) The description of a person referred to in subsection (3) above is a person (whether or not the parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child's parents are persons so described, the consent required for his removal or retention shall be that of them both ..."

[20] The Hague Convention on the Civil Aspects of International Child Abduction 1980 provides inter alia:

"Article 3

The removal or the retention of a child is to be considered wrongful where -

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 5

For the purposes of this Convention -

"rights of custody" shall include rights to the care of the person of the child and, in particular, the right to determine the child's place of residence;
"rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination."

[21] Section 8 of the Child Abduction and Custody Act 1985 provides:

"The High Court or Court of Session may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration or declarator that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention."

Submissions on behalf of the petitioner
[22] Counsel referred to the statutory provisions set out above, and also to the dicta of Lord Donaldson, M.R., in C. v C. (Abduction: Rights of Custody) [1989] 1 W.L.R. at page 663G-H, where he observed:

" ... "rights of custody" as defined in the Convention includes a much more precise meaning, which will, I apprehend, usually be decisive in most applications under the Convention. This is "the right to determine the child's place of residence" ... If anyone ... has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention."

[23] Counsel contended that, in terms of Article 14 of the Convention, the courts in Texas were entitled to take cognisance of a declarator pronounced by the Scottish courts. In terms of Article 15 of the Convention, the courts in Texas were empowered to "request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State".

[24] In the present case, counsel submitted, the petitioner had "custody rights" within the meaning of the Convention by reason of her rights to contact with S and B awarded by the Court of Session by interlocutor dated 11 March 2003. She had the right "to maintain personal relations and direct contact with [the children] on a regular basis", in terms of section 2(1)(c) of the Children (Scotland) Act 1995. She had the right to object to a change in the children's residence, and certainly to object to the removal of the children from Scotland. Accordingly she had "rights of custody" for the purposes of Article 3 of the Convention.

[25] The only outstanding question was whether the second part of Article 3 was satisfied, namely whether "at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention". Counsel referred to the petitioner's ill-health and hospitalisation. The petitioner had been unable to travel to Wick, and due to the respondent's intransigence, alternative arrangements could not be made. Accordingly her last actual contact visit to B had been on 1 May 2003. But it was submitted that during May, June, July, August and September 2003, the petitioner had actually been exercising her right to contact in that she had been actively trying to arrange contact.

[26] So far as the petitioner's son S was concerned, S suffered from autism and was very close to his father. The petitioner had sought to exercise her right of contact to S. It was submitted that she had a right, and she had been seeking to exercise it.

[27] It was submitted therefore that but for the removal of S and B from Scotland, the petitioner would still be exercising her rights of contact. Her failure to do so was not a wilful failure, but had been due to her circumstances, which were vouched for by Highland Council and by her general practitioner.

Opinion
Section 8 of the Child Abduction and Custody Act 1985 and Article 15 of the Hague Convention
[28] Section 8 of the 1985 Act provides that the Court of Session "may, on an application made for the purposes of Article 15 of the Convention [italics added]" make a declarator that the removal of a child was wrongful within the meaning of Article 3 of the Convention.

[29] Article 15 of the Convention provides that:

"The judicial or administrative authorities of a Contracting State [italics added] may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 ..."

[30] In this case, I am not satisfied that a request has been made in terms of Article 15 by the judicial or administrative authorities in Texas, USA (in contrast with the circumstances prevailing in, for example, P.U.W. petitioner, 19 August 2003). No court order or minute or other document has been produced, indicating that the American courts or administrative authorities seek the assistance of the Scottish courts on the issue of wrongful removal. Rather it was the attorney acting for the petitioner who suggested to the petitioner's Scottish agents that an order of the Scottish court should be sought. When exercising the carefully-balanced machinery of the Hague Convention, it is my view that this court should be slow to pronounce a declarator or order without sight of a written request from the judicial or administrative authorities in Texas, USA, in terms which satisfy Article 15 of the Convention.

Whether wrongful removal of B and S
[31] In case I am wrong in the approach outlined above, I now give a view as if the current application complied with the terms of section 8 and Article 15.

[32] In this particular case, the petitioner has not had contact with her son S since mid-2001. The petitioner has an award of contact in terms of the divorce interlocutor dated 11 March 2003, but, as she explains in paragraph [8] of her affidavit, she has not exercised that contact.

[33] In those circumstances, I am not satisfied that the petitioner fulfils the requirement of Article 3(b) of the Convention and section 2(3) and (6) of the Children (Scotland) Act 1995, namely, that at the time of the removal of S from Scotland, the petitioner was actually exercising her right to contact, or would have done so but for the removal of S from Scotland. I do not therefore consider that it would be appropriate to grant declarator in respect of S.

[34] So far as B is concerned, there are disputed issues of fact and law relating to the contact between the petitioner and B, particularly in respect of the period between 1 May 2003 and September 2003, when the petitioner had little actual contact with B. Before reaching any conclusion, I would wish to have fuller information, either in the form of additional affidavits (for example, from those involved in the contact arrangements) or in the form of oral evidence in court. I should also prefer that the respondent be represented. I would wish to be addressed on any authorities which might be of assistance generally and in particular in relation to the question whether or not the petitioner could be regarded as actually exercising her right of contact with B at the time of his removal. On the basis of the information presently before me, I am not persuaded that it would be appropriate to grant a declarator that B was wrongfully removed from Scotland, or that he has been wrongfully retained in the USA.

Conclusion
[35] For the reasons given in paragraph [30] above, I refuse the petition. I reserve all questions of expenses.