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Cite as: [2005] ScotCS CSIH_36, [2005] CSIH 36

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A.J. v. [2005] ScotCS CSIH_36 (29 April 2005)

SECOND DIVISION, DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Clarke

Sir David Edward, Q.C.

[2005CSIH36]

P830/04

OPINION OF THE COURT

delivered by LORD CLARKE

RECLAIMING MOTION

A.J.

Petitioner and Reclaimer;

against

F.J.

Respondent:

_______

Act: Kelly; Drummond Miller, W.S.

Alt: No appearance

29 April 2005

Introduction
[1] The petitioner and reclaimer is the mother of two sons, S and B, who are respectively 14 and 12 years of age. The respondent is their father.

[2] The petitioner and reclaimer made an application to the court in terms of the Child Abduction and Custody Act 1985 and R.C. 70.5. In that application she averred that, by interlocutor of the Lord Ordinary of 11 March 2003, a residential order was made in respect of the children requiring them to live with the respondent who was then residing in Wick. At the same time a contact order was made allowing contact between the petitioner and reclaimer and her children. The petitioner and reclaimer went on to aver that, on or about 21 September 2003, the respondent removed the children from Scotland and took them to the United States of America. The petitioner and reclaimer, furthermore, averred that the respondent was residing with the children in Texas and was retaining them there. At the time of their removal the children were habitually resident in Scotland.

[3] In her application to the court the petitioner and reclaimer contended that the respondent was not entitled to remove the children from the United Kingdom without her consent. She claimed that she was exercising the right of contact in relation to the children at the date of their removal. In Statement IV of her petition, the petitioner and reclaimer averred:-

"In the circumstances the petitioner had rights of custody to the children in terms of Article 3 of the Convention on the Civil Aspects of International Child Abduction signed at the Hague on October 25, 1980 (hereinafter referred to as 'the Convention'). The petitioner has applied to the Central Authority for assistance in securing the return of the children. A Texan Attorney has been appointed to act for the petitioner".

The petitioner sought, inter alia, in her application, a 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".

Article 3 provides as follows:

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

(a) 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

(b) 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".

The Lord Ordinary's decision and submissions in relation thereto
[4] The application came before Lady Paton for a hearing. The petitioner and reclaimer was represented by counsel. There was no appearance by the respondent. Having heard submissions made on behalf of the petitioner and reclaimer, her Ladyship refused the petition.

[5] The Lord Ordinary, in her Opinion, recorded that the parties were married on 2 November 1990 and were divorced on 11 March 2003. At the date of the divorce the respondent lived in Wick with the children and another woman. The petitioner and reclaimer lived in Kilbarchan. In respect of the children, the relevant interlocutor pronounced by the court on 11 March 2003 provided as follows:

" ...

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 (31 January 1991) and B (12 March 1993) and requires that they live with the pursuer;

9. Makes a contact order in respect of the said children, S and B, and allows contact between them and the defender 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". (The petitioner and reclaimer was the defender in the divorce proceedings).

The Lord Ordinary noted that counsel for the petitioner and reclaimer had stated that the elder child S suffers from autism and after the contact order was pronounced the petitioner and reclaimer did not succeed in having contact with him. In an affidavit, which is No. 6/1 of process and is dated 18 May 2004, the petitioner and reclaimer stated as follows:

"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".

On the other hand, the petitioner and reclaimer did manage to have contact with child B on a number of occasions, the last of which occurred on 1 May 2003. Following upon that last contact visit the petitioner and reclaimer became ill. That illness had prevented her from travelling to Wick to see the children. The respondent left Scotland with the children before contact by the petitioner and reclaimer recommenced.

[6] The Lord Ordinary refused the petition on the primary basis that having regard to the fact that there was no written request from the American courts or administrative authorities seeking assistance of the Scottish courts, this court should be slow to pronounce a declarator in the terms sought. Counsel for the petitioner and reclaimer submitted that she had been wrong in doing so. In the first place her Ladyship had misunderstood the law in relation to the operation of section 8 of the Child Abduction and Custody Act 1985 and Article 15 of the Hague Convention. Section 8 of the 1985 Act 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".

Article 15 of the Convention provides:

"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".

The Lord Ordinary had focused on the provisions of Article 15. She appeared to consider that unless, and until, the position was that a request had been made in terms of Article 15 the court should not grant a declarator in terms of section 8 of the 1985 Act. That was, it was submitted, a misunderstanding of the position. It was perfectly competent and appropriate for a party having an interest in the matter to make an application under section 8 in anticipation of a request being made by him or her in terms of Article 15. In the case of in re P (Abduction: Declaration) [1995] 1 F.L.R. 831, the Court of Appeal had held that the English courts had jurisdiction to make a declaration of wrongful removal under section 8 of the 1985 Act in the absence of a request from the appropriate judicial or administrative authority of the requested State. Her Ladyship, it was submitted, should have reached a similar conclusion. Lady Paton did go on to say that even if she were wrong in her decision as to whether the application complied with the terms of section 8 and Article 15, she was, in any event, not satisfied that the petitioner and reclaimer fulfilled the requirements of para. 3(b) of the Convention and section 2(3) and (6) of the Children (Scotland) Act 1995. On this latter matter, the Lord Ordinary had, it was submitted, also misunderstood the legal position. With regard to the child S, her Ladyship said, at paras. 32 and 33 of her Opinion:

"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. 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".

Her Ladyship (at para. 34) addressed the position in relation to the child B in the following terms:

"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 U.S.A.".

Counsel for the petitioner and reclaimer submitted that her Ladyship had misdirected herself in those passages. The position was that the petitioner and reclaimer was awarded contact rights in respect of both of the children on 11 March 2003. It was those rights which were relevant for present purposes. There was no suggestion that the petitioner and reclaimer had abandoned those rights. She had given an explanation for her being unable, as a matter of fact, to exercise her rights in relation to S in the period from 11 March to the time of his removal. She had been exercising her rights, as best she could, in relation to the child B, as was apparent from what was said in a letter which was produced from the Social Work Department of Highland Council of 21 July 2004 and her own affidavit. She then became ill. She had no opportunity to exercise her rights after recovery from illness because by that time the children had been removed by the respondent from Scotland. As noted by the Lord Ordinary in her Opinion, the petitioner and reclaimer immediately made an application for the return of the children to the Scottish Executive Justice Department, Access to Justice and International Group. She obtained the assistance of an American attorney. That attorney had begun proceedings in Texas. She had managed to contact the children by the use of the Internet. She had sent them affectionate e-mails but these had been stopped when the respondent found out about them. In the foregoing circumstances the petitioner and reclaimer could not be said to have abandoned her rights in respect of the children but was seeking to exercise her rights and had done so since the rights were awarded to her. Reference was made to the decisions of Lord Wheatley in the case of O v. O (2002 S.C. 430) and the decision of Lord Clarke in the case of S v. S (2003 S.L.T. 344) both of which, it was said, were authorities for the proposition that very little needed to be shown that lawful rights of custody were actually being exercised in terms of Article 3(b) of the Convention by a person who had had these rights, in a situation where the continued exercise of the rights had been prevented by another party moving the children wrongfully. Lady Paton had, apparently, failed to adopt such an approach in the present case and had failed to give any satisfactory reason for not doing so.

[7] Lastly, counsel for the petitioner and reclaimer informed the court that while the point was not ultimately dealt with in the Lord Ordinary's decision, he felt it incumbent upon him to address the court as to whether the award of contact rights by the court amounted to "rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention," for the purposes of the provisions of Article 3 of the Convention. In relation to this question counsel referred to the provisions of section 2 of the Children (Scotland) Act 1995, section 2(1) provides as follows:

"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;

direct contact with the child on a regular basis; and

(d) to act as the child's legal representative".

Section 2(2) provides:

"Subject to subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others unless any decree or deed conferring the right, or regulating its exercise otherwise provides".

Counsel then referred to section 2(3) which is in the following terms:

"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".

Section 2(6) is to the following effect:

"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".

The court was then referred by counsel to the provisions of Article 5 of the Convention which states:

"For the purposes of this Convention -

(a) '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;

(b) '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".

In the present case the petitioner and reclaimer had, it was submitted, rights in terms of section 2(1)(c) of the 1995 Act. She therefore had, by virtue of the provisions of section 2(3) and (6) of that Act, the right to determine the children's place of residence and, accordingly, had "custody rights" for the purposes of Article 3 of the Convention. That approach was in line with the decision of the Court of Appeal in C. v. C. (Abduction: Rights of Custody) ([1989] 1 W.L.R. 654) and more recently the decision of Hale J., as she then was, in the case of Re W.; Re B (Child Abduction: Unmarried Father) ([1998] 2 F.L.R. 146). Although there was, apparently, as yet, no reported Scottish case which reached this conclusion the matter was fully discussed in an article by Professor Norrie in 1997 S.L.T. (News) 175 in which the writer concluded that this was the result of the provisions of section 2 of the 1995 Act.

[8] Counsel for the petitioner and reclaimer invited the court to allow the reclaiming motion and to pronounce a declarator in terms of paragraph 3 of the prayer of the petition to the effect that the removal of the children had been unlawful. He contended that there was sufficient material before the court to allow that to be done without the need for any further enquiry.

[9] There was no appearance for the respondent. That was also the position before Lady Paton. The respondent had, however, written to the court setting out his position in a letter dated 13 July 2004. Counsel for the petitioner and reclaimer informed the court that the respondent was aware of the reclaiming motion. The appendix had been intimated to him on 9 December 2004 and the diet had been intimated to him on 18 February 2005. It was true that on 24 February 2005 the appendix had been returned to those instructed on behalf of the petitioner and reclaimer. It may have been that the respondent had moved from his previous address. In any event, on 24 September 2004 the agents for the petitioner and reclaimer had spoken to the respondent and had told him of the reclaiming motion. The respondent had said that he might be moving and, in that event, he would intimate his change of address. He had not intimated any change of address. We are satisfied that, in the foregoing circumstances, it is appropriate that we should dispose of this reclaiming motion in the respondent's absence.

Decision
[10] We have reached the conclusion that this reclaiming motion must be allowed. It is clear, in our judgment, that the Lord Ordinary treated this application in an incorrect way. In the first place her Ladyship, in our judgment, misunderstood the effect and purpose of section 8 of the Child Abduction and Custody Act 1985 and its relationship to Article 15 of the Convention. On a plain reading of section 8 there is no warrant for the view that the court ought not, or may not, grant an application made under section 8 simply because there has been no request from the judicial or administrative authorities of a contracting state in terms of Article 15 of the Convention. An argument to that effect was rejected by the Court of Appeal in the case of Re P (Abduction: Declaration) ([1995] 1 F.L.T. 831). We would simply adopt the words of Millett L.J., as he then was, at page 839 where his Lordship was to the following effect:

"The mother submits that the court cannot grant a declaration under section 8 unless the conditions of art 15 are satisfied, and in particular unless the application is made at the request of the judicial or administrative authority of the requested State. In my judgment that is not correct. If the request does not emanate from the appropriate authority of the requested State, the Central Authority of the requesting State is under no obligation to assist the applicant to obtain the declaration. But it is not a precondition of the exercise of the jurisdiction conferred by s 8 of the 1985 Act that the procedure laid down by art 15 of the Convention has been followed. Section 8 speaks of an application 'for the purposes of Article 15' not an application 'made in accordance with the provisions of Article 15', and in my view the choice of words is deliberate. The jurisdiction of the English court cannot sensibly be made to depend on an investigation into the status under a foreign system of the authority which initiated the request, and Parliament cannot sensibly have intended that in case of doubt the English court should delay entertaining the application until a letter or further letter of request has been obtained.

In my judgment 'the purposes of Article 15' does not mean 'for the purposes of enabling the Central Authority to satisfy a request made in accordance with art 15'. It means 'for the purpose of satisfying, either immediately or in due course, the appropriate judicial administrative authorities of the requested State that the removal was wrongful by the law of the requesting State'".

That, in our respectful judgment, is a correct statement of the law. It follows that the Lord Ordinary's main reason for refusing the application was unsound.

[11] We are, furthermore, of the view that the Lord Ordinary erred in her approach as to the question whether, in any event, it could be said that the petitioner and reclaimer was actually exercising her rights in relation to the children at the time of their removal by the respondent. In that respect we would endorse the approach of the court in the cases of O v. O and S v. S to such questions. The court, in both of those cases, drew on the case of Friedrich v. Friedrich (78 F 3d 1060 (1996)), a decision of the United States Court of Appeals for the Sixth Circuit. In that case, in a passage cited in the judgment of the court in the case of S v. S, at page 350 it was said:

"We therefore hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once it determines that the parent exercised custody rights in any manner, the court should stop - completely avoiding the question whether the parent exercised the custody rights well or badly".

In the present case the de iure rights in question were conferred on the petitioner and reclaimer in respect of both children on 11 March 2003. The children were removed from Scotland, without the petitioner and reclaimer's consent, in September 2003. In the meantime the petitioner and reclaimer had had contact visits with the child B. These were discontinued because of her illness. While there was no contact visit with the child S in that period, that may have been because he had been influenced by the respondent. In any event, a relatively short period had elapsed between the granting of the rights to both of the children and their removal without the consent of the petitioner and reclaimer. We consider that it may well have been that, once the health of the petitioner and reclaimer had improved, and a possible variation in the timing and place of contact, which she was apparently minded to seek, had been granted, the position between herself and both of her children would have been stabilised. In any event, on the material before us and applying the approach adopted in the authorities referred to, we are satisfied that it cannot be said that the petitioner and reclaimer was not, for the purposes of Article 3 of the Convention, actually exercising her rights at the time of their removal or would not have exercised them but for the removal.

[12] Lastly, although the point, as has been seen, was not, in the event, specifically addressed by the Lord Ordinary we agree with counsel for the petitioner and reclaimer that "rights of custody" for the purposes of the Convention include rights of contact by virtue of the fact that section 2(3) and (6) of the Children (Scotland) Act 1995 confers upon the contact parent the right to grant or withhold consent to the child's removal from the United Kingdom. The analysis of the position, as discussed by Professor Norrie in his article, cited above, appears to us to be correct. To reach such a conclusion for Scotland is consonant with the approach adopted by the courts in England in the cases of C v. C and Re W; Re. B (Child Abduction: Unmarried Father) cited above.

[13] For all the foregoing reasons we are satisfied that the Lord Ordinary erred in the disposal of the application. We are also satisfied, on the basis of the information before us contained in (a) the letter dated 21 July 2004 from Highland Council to the petitioner's solicitors; (b) the petitioner's affidavit, and (c) the letter dated 13 July 2004 from the respondent to the court, that the removal of the children without the consent of the petitioner and reclaimer was unlawful. Accordingly, we shall allow the reclaiming motion, recall the interlocutor of the Lord Ordinary dated 13 August 2004, grant the prayer of the petition and pronounce a declarator in terms of paragraph 3 of the petition.