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Cite as: [2004] ScotCS 33
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II, Re Petition for an Order [2004] ScotCS 33 (13 February 2004)
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OUTER HOUSE, COURT OF SESSION |
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P1859/03
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OPINION OF LORD MENZIES in Petition of I.I. Petitioner; for An order under the Child Abduction and Custody Act 1985
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Petitioner: Hayhow; Balfour & Manson
Respondent: Wylie; Drummond Miller, W.S.
Child K: Loudon; Mowat Hall Dick
13 February 2004
[1] The petitioner is a national of Cyprus and is habitually resident there. He was married to the respondent on 11 December 1983. There are four children of the marriage, namely S1 (born 19 October 1984), S2 (born 27 May 1988), K (born 4 March 1993) and T (born 2 June 1998). The respondent is a British national born of Scottish parents. She lived in Cyprus from a date before the parties' marriage in 1983 until October 2003. The children K and T are habitually resident in Cyprus.[2] By order of the Cyprus Family Court in Lemesos dated 15 March 2002 the custody and care of all four children was assigned to the respondent provided that she would be residing in Lemesos. The petitioner was awarded contact with his minor children on three afternoons every week, a period of residential contact overnight every second Saturday, and shared Christmas, Easter and summer holidays. In terms of this court order the transfer of the children K and T outside Cyprus was prevented without the consent of the petitioner or the permission of the court, and these children were "put on the Stop-list". However, the petitioner was obliged to give his consent twice a year for the transfer of K and T with the respondent outside Cyprus, upon a deposit of a guarantee of 3,000 Cyprus pounds regarding the return of the children to Cyprus. It was agreed that S1 and S2 would remain in the United Kingdom.
By order of the Cyprus Family Court in Lemesos dated 8 October 2003 the respondent was allowed to take the children K and T to Great Britain from 9 until 12 October 2003. The court made this order conditional upon the children showing return tickets for 12 October 2003, and the respondent providing the financial guarantee specified in the order of 15 March 2002.
[3] The respondent paid the financial guarantee and obtained return air tickets for K and T, and all three travelled to Scotland on 9 October 2003. Since then they have not returned to Cyprus. The respondent now lives with the two children in Inverkip. The petitioner has brought the present proceedings in terms of the Child Abduction and Custody Act 1985 seeking an order for the return of the children K and T to Cyprus in terms of Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at the Hague on October 25, 1980 ("the Convention"). The matter came before me for a first hearing on 23 December 2003. At that time the respondent was represented and had lodged answers to the petition. As framed, those answers were based only on the ground that the child K objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views. The respondent did not seek to argue at that time that there was a grave risk that return of either K or T would expose them to physical or psychological harm or otherwise place them in an intolerable situation. At that time K was not separately represented. On that date I ordered that a second hearing should take place on 22 and 23 January 2004. I was told that parties intended to lodge certain affidavits which would be relied on at that hearing, and that a report from a child psychologist with regard to K would be obtained.[4] On 22 January 2004 both the petitioner and the respondent were represented by counsel, and K was also separately represented by counsel. The position of the respondent had changed since the first hearing; although she maintained her opposition to the petition on the ground that K objected to being returned, and counsel for the respondent adopted the submissions made on behalf of K, the respondent's primary position was that there was a grave risk that return of both children to Cyprus would expose them to physical or psychological harm or would otherwise place them in an intolerable situation. The respondent's answers had been adjusted to reflect this. Answers for the child K had been lodged, asserting that K objected to being returned to Cyprus.
[5] Counsel for the respondent and for K both accepted the fact that K and T were habitually resident in Cyprus, that there was a court order which allowed the respondent to take the children to Great Britain for a number of days in October 2003, that the respondent's retention of the children in Scotland after 12 October 2003 was wrongful, and that accordingly the onus rested with the respondent and K to persuade the court that one of the exceptions provided for in Article 13 of the Convention applied so as to justify the refusal of an order for the return of the children. They accepted that the test for an Article 13 exception was a high one and required compelling evidence to justify the court in refusing to return the children. Put at its shortest, the respondent's case was that she had been subjected to considerable stress before she left Cyprus and had become depressed; her psychological state has improved since she returned to Scotland, but because of her psychological problems she cannot now return to Cyprus. K is not yet 11, and T is 5; neither of them has a close affectionate relationship with the petitioner, who did not involve himself closely with their upbringing and who was erratic in his contact arrangements with them. There is a grave risk that their return to Cyprus in these circumstances, while their mother remained in Scotland, would expose them to psychological harm or otherwise place them in an intolerable situation. Even if the respondent were able to go to Cyprus pending the determination of the issue of the place of residence of the children by the Cyprus Court (which she maintained that she could not do) there was a risk that she would become so depressed that she would be unable to care adequately for the children. In that event they would again be placed in an intolerable situation.
[6] Having regard to the observations of the First Division in W v W 2003 S.L.T. 1253 (particularly at para.18) I propose to reach a view on the Article 13(b) defence before proceeding to consider the separate defence advanced in respect of K. I do not propose to rehearse in detail the evidence before me, because nearly all of this is in written form, by way of affidavits and in a psychologist's report by Dr Valerie Cairns dated 13 January 2004. However, Dr Cairns was called as a witness on behalf of the respondent, and her report was therefore supplemented by her parole evidence. There are some aspects of her evidence which should be noted.
[7] Dr Cairns devoted part of her report to two meetings which she had with the respondent at her home on 2 and 8 January 2004. She summed up the impression which she had from her discussions with the respondent at para.4.14 as follows:
"K's mother presents as emotionally vulnerable and it is uncertain if she has the resilience to cope with a return to Cyprus and an even more difficult situation than the one she left."
She made it clear in her evidence that she carried out no formal clinical assessment of the respondent, and she was merely recording her observations. Similarly, with regard to the chapter of her report commencing with para.5.4, Dr Cairns agreed that she had not carried out a formal assessment as to whether the respondent would be unable to cope if she returned to Cyprus. She was aware that the respondent had consulted a doctor, that she had been prescribed antidepressants, and there was mention of possible counselling (which had not commenced at the time of her interviews with the respondent); Dr Cairns expressed the hope that the respondent would cope better with pressures and stress as a result, but this would depend on the circumstances when she returned to Cyprus. She was unable to express an opinion on the likelihood of any deterioration in the respondent's health.
[8] Dr Cairns made it clear that her report proceeded upon the assumption that the information given by the respondent was accurate. She observed that on this basis the respondent had been the key carer for both K and T throughout their lives, and she would be concerned about the enforced separation of children of this age from their main carer. However, under reference to para.5.4.11 of her report, she could give no estimate of probability as to whether an enforced return to Cyprus could put both T and K at risk of emotional damage, and she was not prepared to assert that this would put either of them at risk of emotional damage.[9] Under cross-examination by counsel for K, Dr Cairns stated that K's view was that she wanted to stay in Scotland, but hoped to return to Cyprus for holidays. Dr Cairns did not explore with K the question of a possible temporary return to Cyprus pending the determination by a Cyprus court of the question of residence; she stated that K did not appear to understand fully the legal position, and Dr Cairns did not explain this to her. It was not Dr Cairns' impression that K's responses to her were unduly influenced by the respondent; she could not categorically exclude this, but she considered that K's responses appeared spontaneous.
[10] Under cross-examination by counsel for the petitioner, Dr Cairns agreed that it was no part of her remit to carry out a psychological assessment of the respondent, and she did not do this. She also confirmed that she did not explain to K that the purpose of the present proceedings was to consider whether K should return to Cyprus pending a decision by the Cyprus court. The proprietary feelings towards her father, which are recorded at paras.4.1.7 and 4.1.8 were not abnormal, and were to some extent a product of K's age. Dr Cairns confirmed that her impression was that T has warm feelings towards the petitioner.
[11] Dr Cairns recorded, at paras.4.4.2 and 4.4.3 of her report, that the respondent stated that she could not go back to Cyprus, but when asked "even if the girls were returned to Cyprus?" she added, "That is what I am saying, but...." and it sounded as if she couldn't imagine herself really staying here if the younger girls were returned. Dr Cairns confirmed in her evidence that her impression was, regardless of what the respondent said, that she would go back to Cyprus if the girls were returned. She also confirmed that the respondent still feels very much better than before she left Cyprus. She was clear that neither K nor T displayed acute anxiety or distress at the prospect of returning to Cyprus. She could not exclude the possibility that the respondent had influenced K to some extent in the response recorded at para.4.6.5.1 of the report, and she agreed that K's most important adult connection is with the respondent, so she could not be described as being totally independent of the respondent's views. The terms of para.5 of K's affidavit were put to Dr Cairns, who said that she was not particularly surprised to see these, and that her views may be influenced by her perception of the respondent's emotional vulnerability. She observed that the respondent's influence is very important, and that para.5 was not how she responded to Dr Cairns in their meetings, but children respond differently to different adults. Finally, Dr Cairns stated that her impressions as to the respondent's ability to cope with a return to Cyprus were tentative, as indeed were all her conclusions.
Submissions regarding the Article 13(b) defence
(a) Submissions for the respondent
[12] Counsel for the respondent submitted that on the basis of the affidavits and Dr Cairns' report and parole evidence, there was a grave risk that if K and T were returned to Cyprus they would be exposed to psychological harm or otherwise placed in an intolerable situation. This arose because of the respondent's health difficulties, and would occur whether or not she was able to return to Cyprus. Counsel confirmed that, as at the date of the second hearing, the respondent felt that she could not return to Cyprus, so any order for the return of the children would result in their being separated from her. She drew my attention to the affidavit from the respondent's sister, H.C., who is a nurse, who spoke of her impressions and conclusions as to the respondent's mental health during the course of 2003, and since her return to Scotland, and her concerns if an order for the return of the children were to be pronounced. These concerns are echoed in the affidavit by the respondent's mother, P.C. I was also referred to a letter appended to the respondent's affidavit from Dr Chan, a general practitioner whom the respondent has consulted since 6 November 2003. He records inter alia that
"clinically I found her suffering from depression and commenced her on antidepressant medication. I have also referred her to see our health visitor for counselling. My impression is this patient has gone through a rather traumatic time while she was in Cyprus and I believe that if she has to go back to residing in Cyprus, her mental condition will deteriorate and that would have a detrimental effect on her health and her children. I have not assessed her children but no doubt all this upheaval and trauma, in my opinion, will affect them emotionally."
Counsel emphasised that the respondent's position is that she cannot return, rather than that she will not return. This is the respondent's subjective view and is bound up with practical difficulties which she experienced in Cyprus. These are explained in more detail in her affidavit, but include her financial difficulties; she cannot afford the mortgage repayments in respect of her accommodation in Cyprus, and the petitioner has been in arrears with maintenance payments, not having paid her since June 2003. Moreover, there is a possibility that she will face criminal charges for the illegal removal of the children on her return to Cyprus, and there were doubts as to whether she would be entitled to financial assistance to bring legal proceedings in Cyprus to vary the order of the Cyprus court with a view to allowing the children to reside in Scotland (on which see the affidavit of Carol Knox., and also the joint minute for the parties, No.24 of process).
[13] Under reference to C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All.E.R. 465 counsel for the respondent accepted that what is envisaged by "psychological harm" in Article 13 of the Convention is a severe degree of psychological harm; furthermore, under reference to the same case, she accepted that it will not do that the grave risk of psychological harm is created by the refusal of the abducting parent to return with the children. Counsel submitted that this was an exceptional case which involved a grave risk of the requisite degree of psychological harm, and that the respondent's position was not a wilful refusal to return to Cyprus but an inability to return by reason of her own mental state. A court is entitled to refuse to return children if the abducting parent is able to establish that there is a grave risk that their return would expose the children to psychological harm or otherwise place the children in an intolerable situation as a result of the worsening of the abducting parent's mental condition and the consequent placing at risk of the children - Re G (Abduction: Psychological Harm) [1995] 1 F.L.R. 64. Counsel submitted that there was compelling evidence in the present case that the respondent's mental health would deteriorate if she returned to Cyprus, and that her failure to return with the children is caused by a genuine medical problem which causes her to feel unable to return. The returning of the children to Cyprus without their mother would result in a grave risk of emotional harm to them. Moreover, should the court be persuaded by K's objection not to order the return of K, T would be placed in an intolerable situation if the court ordered her to be returned to Cyprus without her mother and without her sister K.[14] Counsel for K adopted the submissions for the respondent with regard to the Article 13(b) defence.
(b) Submissions for the petitioner
[15] Counsel for the petitioner emphasised that the tests which must be met before the Article 13(b) defence could be established were high tests. The risk must be a grave risk; the risk is to occur on the return of the child to the proper jurisdiction (in this case Cyprus) and not at some later stage; and the risk relates to the exposure of the child (or children) to harm, not of the mother to harm. Moreover, by reason of Article 19 of the Convention, a decision under the Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Under reference to C v C counsel emphasised that a mother cannot create a situation whereby her refusal to return the children without a sound basis can be relied on as justification for refusing an order for their return. As was observed in C v C, 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 element of psychological harm should be disregarded in considering whether there is a grave risk of psychological harm to the children. The psychological harm envisaged by Article 13(b) must be more than that which arises merely from the fact of their return to Cyprus. No evidence had been adduced on this point, and counsel submitted that this omission was significant. It has not been established that the Cyprus Court could not minimise any psychological harm to the children. Moreover, the court in Cyprus was in a position to regulate matters of maintenance, accommodation and the like, which were factors relied on by the respondent as having caused her stress and depression before she removed the children from Cyprus.[16] Counsel pointed out that the approach taken in C v C, and in particular the Opinion of Butler-Sloss L.J. (at p.471) was approved by the Second Division in Whitley, Petitioner 1998 Fam.L.R. 7 and was also followed in Starr v Starr 1999 S.L.T. 335. A similar approach has been taken in the United States of America - counsel referred me to Friedrich v Friedrich 78 F. 3d 1060 (1996), a decision of the United States Court of Appeals which cast light not only on how the court should approach the Convention, but what is meant by a grave risk of harm for the purposes of the Convention. In support of his submission that the risk of harm is to be assessed over a very short period following upon return of the children, he referred me to McCarthy v McCarthy 1994 S.L.T. 743 (particularly at 747I-L). Accordingly, speculation by Dr Cairns as to K's long-term schooling once in Cyprus, or the respondent's financial circumstances, are not relevant considerations because they fall outwith the relevant timescale.
[17] With regard to the evidence concerning the Article 13(b) defence, counsel submitted that Dr Cairns' report and evidence had to be treated with considerable caution for several reasons. First, it is clear that Dr Cairns did not address K to the principal issue in the case, namely whether K should return to Cyprus pending the determination of the Cyprus court of the issue of her place of residence. Second, Dr Cairns strayed into areas on which she was not qualified to express views, such as the quality of the respondent's parenting skills, and the ability of the respondent to cope if returned to Cyprus. These were questions which were dependent on the circumstances prevailing in Cyprus, and Dr Cairns was not in a position to assess these. If the respondent returned to Cyprus and if her mental health deteriorated, Dr Cairns was not able to assert that her parenting skills would be affected. Third, Dr Cairns did not carry out a clinical assessment of the respondent, so little weight should be attached to her observations as to the respondent's psychological condition. Counsel submitted that the absence of a formal psychiatric or psychological assessment of the respondent was a fundamental flaw in the respondent's case, and there was not sufficient evidence to support the view that there would be grave risk of harm to either child. At para.5.4.11 of her report, Dr Cairns went no further than suggesting that an enforced return to Cyprus could put both children at risk of emotional damage - she was unable to assert that this would occur, or to express an opinion as to the probability of its occurrence, far less state that there was a grave risk of its occurrence.
[18] Counsel emphasised that an "intolerable situation" for the purpose of the Convention is a very serious situation indeed, and must amount to more than a vague concern that the mother's depression will detract from her ability to care for the children in some unquantified way. There was no evidence, apart from general unhappiness at returning to her father, of anything "intolerable" if K returned to Cyprus. It was clear from the affidavits of the petitioner and his brother and sister that both children would be returning to familiar surroundings and to an extended family with whom they were happy and who were fond of them. If they returned with the respondent, they would be returning to the apartment in which they had lived before their wrongful retention. If the respondent did not return with them, they would be staying with the petitioner in the former matrimonial home. It was clear from K's affidavit that she had strong and protective feelings towards this house. They would be returning to the school which they had previously attended; the affidavit of the headmaster of the school confirmed that both girls had a good attendance record and appeared to enjoy school, that the school fees were reduced significantly for each child for the current academic year following a request for financial assistance by the respondent, and that there are places for each girl in the school should they return. An affidavit from Alexandros Tsirides, who is a lawyer practising in Cyprus and specialising in family law and abduction cases (and who is also a barrister and member of Lincoln's Inn) indicated that if the respondent wishes to apply to the Family Court of Lemesos for leave to move the children out of Cyprus, from his experience the time required to finish the proceedings if they were contested from start to finish would not exceed six months.
[19] Counsel accepted that it would be preferable for K and T to return to Cyprus with their mother, but there was no evidence before the court to enable me to find that if the respondent did not return to Cyprus there was a grave risk that the return of either child would expose the child to psychological harm or otherwise place her in an intolerable situation. There was no question of the petitioner maltreating the children, and neither the respondent nor the children objected to the children going to Cyprus for reasonably long periods of contact with the petitioner during school holidays. The affidavits from the respondent's mother and sister indicate that the respondent's mental health is much better now than when she returned to Scotland in October 2003, and there is no reason to think that she may be subjected to any pressures in Cyprus which would cause her health to deteriorate. In any event, the petitioner gave an undertaking to the court that he would continue to pay aliment for the children, that he would immediately pay the respondent arrears of aliment which have accrued since the wrongful retention of the children in Scotland, that he would pay the school fees for K and T at the school which they previously attended until the respondent was able to find employment, and that he would pay for the return airfares of the children from Scotland to Cyprus.
Determination of the issue of the Article 13(b) defence
[20] There was little difference between the parties as to the legal test to be applied in considering this defence. It is clear that the test is a very high one. In this regard it is worthwhile remembering the observations of Butler-Sloss L.J. in C v C:
"The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. 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. I am not satisfied that the child would be placed in an intolerable situation if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely on 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 on 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 LJ said in Re E (a minor) (abduction) [1989] 1 FLR 135 at 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 has custodial rights, to another jurisdiction, then wrongfully to retain that child.'
If this mother will not accompany the child, despite the knowledge that his rightful place is in New South Wales, then, on the facts before this court, I am not satisfied that art 13(b) applies. In my judgment, the child should return to his father."
Lord Donaldson of Lymington M.R. observed in the same case:
"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, recognised 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 minimise 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, ie the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child."
"In thinking about these problems, we acknowledge that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country's courts to respond accordingly... When we trust the court system in the abducted-from country, the vast majority of claims of harm - those that do not rise to the level of gravity required by the Convention - evaporate."
They go on to observe that the person opposing the child's return must show that the risk to the child is grave, not merely serious :
"A review of deliberations on the Convention reveals that 'intolerable situation' was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an 'intolerable situation' is one in which a custodial parent sexually abuses the child.... Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute - e.g. returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection."
[23] I accept that in some cases the fact that the abducting parent's mental condition would worsen on returning with the children with the consequence that children would be placed at risk, may be sufficient to enable the Article 13(b) defence to be established. Re G (Abduction: Psychological Harm) was such a case. However, I note that in that case the mother was assessed by a consultant psychiatrist who expressed the opinion that she was suffering from moderately severe reactive depression and that her depression would be severely exacerbated if she was forced to return to the USA. There was no such evidence before me. There was a short letter from a general practitioner which was not stated to be on soul and conscience; it does not appear to have been the result of a formal psychiatric assessment, and merely gives the doctor's impressions and beliefs. It does not seem to me to add much to the respondent's case. As Dr Cairns readily accepted, it was not part of her remit to assess the respondent's mental state, and she carried out no clinical assessment of this. Moreover (and inevitably) she proceeded on the basis that the information given to her by the respondent was accurate - she did not have any contrary information from the petitioner or his family, and she was unaware of the circumstances in Cyprus. At her meetings with the respondent on 2 and 8 January it appears that the respondent's position was the same as it was at the hearing before me on 22 and 23 January 2004, namely that she could not go back to Cyprus. However, Dr Cairns stated that her impression was that, regardless of what she said, the respondent would go back to Cyprus. Dr Cairns was unable to assert definitely that the respondent would be unable to cope with a return to Cyprus, and was also unable to express the view that an enforced return to Cyprus would put either child at risk of emotional damage.
[24] Looking at all the evidence, I have reached the view that it is likely that if an order for the return of the children is made, the respondent will indeed return to Cyprus. It seems to me to be preferable, from the children's point of view, that she should do so. If she does return to Cyprus, there is no satisfactory evidence from which I can draw the conclusion that her mental health will deteriorate to such an extent that there is a grave risk of either child suffering psychological harm or otherwise being placed in an intolerable situation. On the evidence before me, her mental health appears to have improved since she returned to Scotland. Standing the undertakings given by the petitioner, and the protection which can be expected from the Cyprus court, and bearing in mind that I am concerned with only a very short period after the children's return to Cyprus, I am not satisfied that if the respondent returns with the children there is a grave risk that the return of either child would expose the child to psychological harm or otherwise place the child in an intolerable situation.
[25] Similarly, if the respondent remains in Scotland I am not satisfied that the return of the children to Cyprus would expose either of them to psychological harm or otherwise place them in an intolerable situation. They would be cared for by their father and would live in the former matrimonial home. They would be in familiar surroundings at school, which they appear, on the evidence from the school, to have enjoyed. They would be surrounded by a close and affectionate family. Inevitably there would be a degree of emotional upset at being separated from their mother, who has taken the principal role in caring for them to date, but as Lord Donaldson M.R. observed in C v C, in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent. I do not consider that such emotional upset would go beyond the inevitable upset inherent in the operation of the Convention.
[26] In all the circumstances I am not persuaded that the respondent has established the exception to Article 12 provided by Article 13(b).
The objections of K to being returned
[27] It is clear from the structure of Article 13, and from the Opinion of the First Division in W v W 2003 S.L.T. 1253, that the part of Article 13 which relates to a child's objections to being returned is quite separate from para.(b) of that Article. In the present case K instructed solicitors and counsel to represent her interests, and an affidavit from her was lodged. Much of Dr Cairns' report and evidence was concerned with K's objection.
Submissions by counsel for K
[28] Counsel for K accepted that this was a wrongful retention, and accordingly an order under Article 12 of the Convention should be pronounced for the return of the children unless an exception under Article 13 was made out. She submitted that the appropriate way to consider K's objections was as set out in paras.20 and 21 of W v W. It was clear from K's affidavit that she did object to being returned to Cyprus, and her reasons for this are to be found in her affidavit and also in the record of the two meetings which she had with Dr Cairns (recorded at sections 4.1 and 4.6 of Dr Cairns' report). With regard to her age and degree of maturity, Dr Cairns found that K functions intellectually, emotionally and socially at the expected level for a 10 year old; her findings as to K's maturity and views are set out at paras.5.1 to 5.3 of her report. The next stage is to decide whether it is appropriate to take account of K's views, which requires an assessment of the strength and validity of those views. This assessment, counsel submitted, involved a question of judgment by the court. In support of this she referred me to Re R. (Child Abduction: Acquiescence) [1995] 1 F.L.R. 716, per Millett L.J. at 734/735:
"Whether the child does object, his age and degree of maturity are all questions of fact to be determined upon the evidence; but whether, given the child's age and the degree of maturity which he is shown to possess, it is appropriate to take account of his views on the question whether he should be returned is not, in my view, a question of fact at all but a question of judgment."
[30] Counsel submitted that each of the following factors must be assessed and placed in the balance when exercising the court's discretion:
(1) The ethos of the Convention, which (subject to exceptions) is designed to achieve the prompt return of children wrongfully retained;
(2) The removal of these children was in defiance of a Cyprus court order;
(3) This was not a case in which the respondent "went on the run" with the children - she returned to Scotland and stayed with her family and did not seek to conceal her whereabouts;
(4) K says that she wishes to stay in Scotland; her two older siblings reside in the United Kingdom, and both came to Scotland when about the same age as K;
(5) The real issue between the petitioner and the respondent is the petitioner's contact with the children - the children have never lived with the petitioner since the separation, and no question has arisen of an application for their custody;
(6) K wishes to retain a relationship with the petitioner and does not seek to hide her Cypriot identity;
(7) K has had what amounts to a Scottish upbringing whilst in Cyprus;
(8) What is to happen to T is relevant to the exercise of the court's discretion with regard to K; and
(9) Finally K's views must again be taken into account.
Submissions for the petitioner with regard to K's objections
[31] Mr Hayhow for the petitioner reminded me of the terms of Article 19 of the Convention, to the effect that a decision regarding the return of a child shall not be taken to be a determination of the merits of any custody action. He submitted that the court is therefore not concerned to consider the welfare or custody of the children. Under reference to W v W (particularly at para.17 of the Opinion of the Court) he submitted that even if I was satisfied by K's objections, a decision to give effect to K's wishes ought not to be regarded as necessarily sealing the fate of T. Moreover, in exercising my discretion, even if K's views are given weight, it may still be a reason for not giving effect to them that T is to be returned to Cyprus.[32] With regard to the first branch of the test set out in para.20 of the Opinion of the Court in W v W, counsel submitted that there was a crucial gap in the evidence for K. On the evidence, K has never been addressed to the true question, namely whether she objects to returning to Cyprus pending the outcome of Cyprus court proceedings. That question has never been put to her, nor has it been explained to her what the purpose of the present proceedings is. Why K objects is very important in this case - it appears that she objects as a result of an incomplete and improper understanding of the issue which faces her.
[33] With regard to the second branch of the test set out at para.20 in W v W, counsel emphasised that "the child has to know what has happened to her". In this case, K does not know that she has been wrongfully retained by her mother in breach of an order of the Cyprus court. Moreover, she does not understand the range of choice available. She has not been asked about the correct range of choices regarding the decision she has to make, namely should she return temporarily to Cyprus and live with her mother, or return temporarily to Cyprus and live with her father. Counsel also emphasised the third sentence of this branch, namely that "the child has to have gained a level of maturity at which it can make a decision independent from parental influence". It was clear, he submitted, from K's affidavit that her objection was not independent from parental influence. Dr Cairns had agreed in cross-examination that K's most important adult connection was with the respondent, and that she was not totally independent of her mother's views. Dr Cairns also accepted that para.5 of K's affidavit may have been influenced by her perception of her mother's emotional vulnerability, and that her mother's influence was accordingly important. Dr Cairns had observed that para.5 of K's affidavit was not how K had responded to her. Counsel also drew my attention to the observations of the court at para.41 of W v W cautioning against accepting pro veritate and without reservation the views of a child in the absence of supporting evidence.
[34] Counsel emphasised that the ethos of the Convention was that the Cyprus court should be trusted to do the right thing. Considerations about K's attachment to relatives in Scotland were not relevant to the present issue, nor was K's perception that her school in Scotland was better than her school in Cyprus - a perception which in any event had no independent evidential basis. The welfare of the children was only relevant for present purposes in the short timescale immediately following their return to Cyprus, as identified by Lord Prosser in McCarthy - wider considerations of the children's welfare were matters for the Cypriot court.
[35] K's views cannot determine the issue with regard to T. Even if I were persuaded that all three branches referred to in para.20 of W v W were made out and that it was appropriate to take account of K's views, counsel submitted that when considering the exercise of my discretion I could still take the view that it was in the best interests of both children to remain together, and that as T appears to have no anxiety about returning to her father and there are no reasons to preclude her return, in order to protect T's best interests I should order the return of K as well.
Determination of the issue of K's objection
[36] Without rehearsing in detail K's views, which are contained in her affidavit and also in Dr Cairns' report, her principal grounds of objection in these proceedings may be summarised as follows:
(1) She likes being in Scotland (where there is snow), and it is more interesting than being in Cyprus (although she misses her two friends in Cyprus);
(2) She could not live with her dad in Cyprus (although she has no problems going back for holidays, and would like to go back and see her relatives there). "I don't want to live there " ;
(3) Life in Cyprus was not good before she, her mother and T left - her mother was very depressed and was not happy there; she would not help K with her homework and acted unhappy. She is happier in Scotland;
(4) K did not like school in Cyprus - it was very strict, and difficult. She does not want to go to a Greek school;
(5) K is unhappy that her dad is living with E and E's daughter. She is unhappy that he gave a dog to E's daughter, when K had been asking for a dog for a long time. She was unhappy that he took E to K's aunt's wedding in Greece, having previously said that K could go. Dr Cairns notes (at 4.1.5 of her report) that K is most distressed by the intrusion of her father's new partner and her daughter;
(6) K views her dad as being stricter than her mum "who hardly ever says no. Mum seems to spoil me a lot. I get more pocket money (from her). Dad would only give me £2."
[38] Turning to the second branch of the matters to be established, K does not appear to be aware that the respondent has wrongfully retained both children in Scotland in breach of an order of the Cypriot court. I am not persuaded that K properly understands the range of choices available, nor am I satisfied that she can make a decision independent from parental influence. In saying this, I am not suggesting that the respondent is deliberately seeking to influence K against her father - there is nothing before me to suggest this. However, in a situation such as this it is perhaps inevitable that a child of K's age will be influenced by her mother's views and wishes, and by her perception of what is best for her mother. I have formed the impression from K's affidavit and from Dr Cairns' report and evidence that it cannot be said that K's views are independent from her mother's influence.
[39] Moreover, K's views appear to proceed, to some extent at least, on the basis of factual misapprehensions. She appears to be unsure as to whether there will be a place for her at the English speaking school which she previously attended; it appears from the affidavit of the principal of that school that there would be places for both girls in the school if they were to return, and that the school fees were reduced significantly for the current school year. K also appears to fear that the respondent will be as stressed and unhappy if she returns to Cyprus as she was when she left Cyprus. While of course this cannot be entirely excluded, the fact that the respondent has been receiving antidepressant medication and psychological counselling and that her health has improved since October 2003, together with the financial undertakings regarding maintenance given by the petitioner to this court and the protection which the Cyprus court can be expected to provide, all suggest to me that the respondent may be able to cope with a return to Cyprus for the period required to enable the Cyprus court to determine whether the children can be taken to Scotland.
[40] I understand that a decision to order the return of the children to Cyprus may result in some emotional upset for each child. However, for the reasons which I have been discussing I do not consider that it is appropriate to take account of K's views. In assessing the strength and validity of those views, I regard it as important that K has not expressed an objection to returning to Cyprus temporarily, rather than permanently. I also consider it important that she is unaware that she and T have been retained in Scotland in breach of a Cyprus court order, and that she does not understand that the purpose of a return to Cyprus would be to enable the Cyprus court to determine where she should live. I do not consider that the views which she has expressed can be regarded as independent of the influence of her mother. The fact that she likes being in Scotland and finds it more interesting than Cyprus, and the fact that her father may be stricter than her mother and give her less pocket money, are not in my view relevant. The strength and validity of K's views are not such as to outweigh the clear ethos of the Convention. They do not in my opinion meet the high test required for an exception under Article 13 to the general rule in Article 12.
[41] Having reached the view that I have that it is not appropriate to take account of K's views, it is not strictly necessary for me to address the question of my discretion. Discretion would only arise if I decided that it was appropriate to take account of K's views. As Millett L.J. observed in Re R. (Child Abduction) (at p.734G), "If a child is not of an age and degree of maturity which makes it appropriate to take his views into account, he must be returned despite his objections and without any further enquiry whether his return is in his best interests." It follows from my decision with regard to (1) the Article 13(b) defence, and (2) K's objections, that I have no discretion in the matter and that an order for the return of both children must be made. However, in deference to the submissions before me, and for the sake of completeness, I should indicate that if I had found otherwise regarding K's objections I should still have exercised my discretion with the effect of ordering the return of both children. All parties agreed that (other things being equal) it would be preferable for both children to stay together. There was nothing before me to suggest that T had any difficulty about returning to Cyprus, and she expressed no reservations about seeing her father again. Thankfully this is not a case in which there was any suggestion that the children would be ill-treated in any way if they were to return to Cyprus. Those considerations which might weigh in favour of my exercising my discretion and refusing to return the children to Cyprus were largely speculative, or at best not more than possibilities. There might be a deterioration in the respondent's psychological health, which might occur despite the undertakings given to this court, and might result in her ability to care for the children being reduced. On the other hand, she might not feel able to return to Cyprus. Although there is no suggestion that the children's welfare is at risk were they to remain in Scotland, the evidence that it would be contrary to their welfare to return to Cyprus did not appear to me to be strong, and in any event insufficient to outweigh the ethos of the Convention to the effect that children should normally be returned to the country of their residence, where a decision as to welfare can be made. Had I any discretion in the matter, I should therefore have exercised it in favour of granting the orders sought.
Conclusion
[42] For these reasons I am not satisfied that either of the exceptions relied on, is made out, and I propose to grant an order for the return of the children K and T to Cyprus in terms of Article 12 of the Convention. As agreed between counsel, the case will be put out By Order shortly after the issuing of this Opinion to enable the detailed mechanisms for the return of the children to be discussed.