Scottish Court of Session Decisions

Legislative structure

"Article 3

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.

.....

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

...

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

...".

Submissions on behalf of the respondent

"I consider that the only way in which I could appropriately have taken into account anything said by the defender in such evidence-in-chief as he gave was by way of taking into account anything said by him adverse to his interests. On this basis, I propose simply to ignore the evidence for the defender."

I was invited in considering the affidavit of the petitioner (6/5 of process) and the supplementary affidavit (6/41 of process) to accept only those parts of the affidavits which were against the interest of the petition. In particular I should accept the evidence of the petitioner that he agreed to the return of the respondent and said child to live in to Scotland. It was submitted that there was nothing in the affidavit evidence of the petitioner to suggest that he had ever changed his mind about the return of the respondent and said child to Scotland. That was all against a background of arrangements being made to sell the parties' house in New Zealand and obvious preparations, for departure such as the packing of boxes in the matrimonial home, in January 2006. In addition, reference was made to the evidence of Kathleen Aird (7/8 of process), Iain Aird (7/9 of process), Raymond Kirkpatrick (7/12 of process), Edna Stanley (7/14 of process) and Maria Hamilton (6/38 of process). Senior counsel for the respondent said that although there was some difference in detail in the evidence about the consent, plainly there was evidence of consent not only from the parties themselves but testified to by family members, friends and business associates. He conceded that on the evidence it was not possible to found a case based on some consent being given by the petitioner before the parties and said child moved to New Zealand. He said that his case was based on the consent given by the petitioner in November 2005 and the discussions and agreement to defer departure to March 2006. Senior counsel for the respondent said that on the evidence it should be accepted that the move to New Zealand was a two year working holiday, as that was relevant both to background and to any exercise of discretion. He founded upon the respondent's evidence and the evidence of Kathleen Aird (7/8 of process), Iain Aird (7/9 of process), Mark Russell (7/11 of process), Raymond Kirkpatrick (7/12 of process) and Maureen Jackson (7/4 of process). He also pointed out that the evidence was that when the parties left return tickets were purchased.

Submissions of behalf of the petitioner

"1. He will not attempt to obtain custody/residence of said child without the sanction of the New Zealand courts;

2. He will not seek an order from the New Zealand courts in respect of the care arrangements for said child without the Respondent having the opportunity to be heard and represented in such proceedings;

3. He will allow the Respondent and said child exclusive and peaceable occupation of the matrimonial home, 5 Olive Court, Blenheim;

4. He will not attend at the matrimonial home without the consent of the Respondent;

5. He will meet the mortgage and other utility bill payments in respect of the matrimonial home;

6. He will pay the Respondent, at her choice, either an additional sum of $130 per week or a lump sum of $500 on her arrival in New Zealand (for the avoidance of doubt, the sums are expressed in New Zealand dollars); and

7. He will meet the day care fees for said child to attend John Street Preschool, Blenheim;

These undertakings will not be varied or withdrawn until the New Zealand courts have considered the appropriate arrangements for the care of said child, but cease at that point unless those courts hold that they should be renewed. The giving of these undertakings is not a concession that they are to any extent necessary or appropriate and they are given on the understanding that they will not be relied on in the New Zealand courts as indicating any such concession, they being given simply as a holding measure."

The evidence and the facts
[13] It is a difficult task to try to assess evidence based on affidavits and oral evidence from the respondent only. I was not prepared to follow the approach adopted by the Lord Ordinary in Bowie v Bowie as I considered that case was very different in its circumstances. In this case the Court approved both affidavits and oral evidence but the petitioner was under no obligation to give oral evidence. He did not give oral evidence. I drew no adverse inference from that and considered that the petitioner's affidavit should be given full consideration along with the other evidence in the case. Much of the evidence in the affidavits was not focused on the issues which were argued before me and I have not attempted make findings about all the disputed allegations which the parties make.

"My daughter advised me that she had spoken to L. and he had agreed that they would return to Scotland in November 2005. When I spoke to L. myself he confirmed this. He still of course has his return ticket. My daughter purchased her ticket on 11 October 2005 but as there was insufficient money in the joint credit card account L. agreed that I should purchase C's ticket from my own credit card account as a Christmas present. I discussed this with both L. and V. at the time. They were both happy that I was to do this."

(7/2 of process which is the same as 7/8 of process). The respondent's brother stated:

"Initially my sister and C. were to return in November 2005. I had discussions with L. about this. He was to stay behind, sell the house and return in April 2006 via Los Angeles, as he wanted to visit an uncle out there who had a Harley motor cycle. L. wanted to ride it and then return to Scotland."

(7/9 of process, paragraph 3). In oral evidence the respondent's position was that she had ongoing discussions from June 2005 with the petitioner as she wanted to return to Scotland. He wanted to stay in New Zealand. She was very vague as to how it came about that the petitioner allegedly changed his mind and about details of the arrangements and the dates thereof. She said that she purchased her return ticket using the joint credit card provided by the petitioner for that purpose. There was still a return ticket for said child. But when the petitioner's mother persuaded her to defer the flight to March 2006, said child's ticket had expired and the respondent's mother purchased a ticket for said child. The petitioner in his affidavit stated that the respondent booked tickets to return to Scotland in approximately September/October 2005 and that this was without his knowledge and that he was very upset. (6/7 of process). In his supplementary affidavit (6/41 of process, paragraph 5), he confirms that he did not have any involvement in the purchase of either ticket and gives further details about the ticket purchase which he said was done on the respondent's card. In view of the conflict in the evidence and the lack of any explanation from the respondent explaining the circumstances in which the petitioner was alleged to have consented to all this in November 2005, I am not persuaded that the petitioner consented in advance to the travel arrangements being made for the respondent and said child in November 2005. Nevertheless I conclude from the petitioner's own affidavit (6/7 of process, paragraph 12) that he did thereafter agree the arrangements made by the respondent.

"Accordingly we arranged for V. and C.'s flights to be transferred to the end of March 2006 so that she could return to see what her preferred option for living was, with my mother who was coming to New Zealand for a holiday and returning to Scotland in March 2006".

I regard this as an important statement of the petitioner's position which I accept. It appears plain from the evidence of the parties and the petitioner's mother that following the purchase of tickets by the respondent in about November 2005, there were further discussions between the parties which resulted in agreement by both parties that the respondent and said child should delay any return to Scotland until March 2006. This was partly to allow said child to enjoy the New Zealand summer months and also to enable the respondent and said child to travel back to Scotland with the petitioner's mother who was coming in March for a holiday in New Zealand. Thus in a sense the respondent did have the petitioner's consent to return to Scotland with said child. But I am also satisfied on the evidence that the consent was given only in the context of a family arrangement agreed by the parties. It was plain from the respondent's oral evidence in cross-examination that she had no consent to remove said child to live in Scotland if the move was not part of a family arrangement but the result of her own unilateral decision to separate from the petitioner and break up the marriage. The respondent's oral evidence was that up until January 2005 arrangements were being made for the return of both parties and said child to live in Scotland albeit the petitioner was not to return in March but at some later date after he had sold the matrimonial home and dealt with other practical matters. It was also envisaged that the parties might have to live separately in Scotland for a period until family accommodation was obtained. In cross-examination the respondent was totally unable to give any satisfactory explanation as to why if she had the consent of the petitioner, she had taken steps to conceal her departure to Scotland in January when she took said child without telling the petitioner in advance. Eventually she accepted that there was no agreement to take said child to live in Scotland in the event that the marriage failed and she decided to leave. She also accepted that she knew the petitioner would object if he had been told by her that she was separating from him but taking said child. I also accept the respondent's evidence that she believed that the petitioner intended to return to Scotland because that is what he told her. She thought that if she went to Scotland in January, the petitioner would also return to Scotland. The evidence from the petitioner's mother is to the effect that her son did not intend to return to Scotland. I concluded from the petitioner's affidavit evidence that his preferred option was to stay in New Zealand and he was waiting to see what happened and what the respondent wanted to do. I consider that the petitioner expressed different views about his intentions from time to time. Plainly the parties were not communicating well and whether deliberately or not, the respondent was misled by the petitioner about his intentions. I also accept the evidence of the parties that there were tensions and problems in the marriage. There is no evidence that there was discussion resulting in any agreement as to what would happen if the parties' relationship broke down and one or both of the parties wished a separation. That lack of discussion and lack of consensual arrangement in the event of separation never changed. Meanwhile the parties' relationship remained variable and the respondent certainly suffered stress and anxiety. It is to the great credit of the respondent that she did not hesitate to say in evidence that she would return to New Zealand to care for said child if that was the order of the Court. She was plainly concerned, as the main carer for said child, to ensure continuity of care despite her own obvious distress and concerns about a return to New Zealand. I accepted the respondent as a credible and reliable witness in relation to the issues about consent with which I have dealt except in relation to the events in November 2005 as I have explained. In cross-examination I considered that she was attempting to avoid some of the questions but in the event she answered the questions and her own testimony was not helpful to her position. Most of the detail about the history post November 2005 came only from the respondent and emerged in cross-examination.