Scottish Court of Session Decisions

Petitioner: Burr; Anderson Strathern

Respondent: Wylie; Digby Brown (for J.K. Cameron, Glasgow)

5 April 2007

[1] This is a petition at the instance of the father of K.T., a girl born on 28 March 1993, and of M.T., a boy born on 1 June 1999, for an order under the Child Abduction and Custody Act 1985 (the 1985 Act) and the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) requiring the return of the children to Poland. The petitioner is a Polish national. He resides in Poland. He was divorced from the children's mother (the respondent), also a Polish national, by order of a Polish court in March 2004. The same court ordered that the children should reside with the respondent and have contact with the petitioner. In August 2006 the respondent brought the children to Scotland. Since then they have lived in Scotland with their mother and other members of their extended family, who have also recently moved to Scotland. In her answers to the petition, the respondent claims that the petitioner does not have "rights of custody" in respect of the children within the meaning of the Convention, and thus does not qualify for the protection granted by the Convention. That issue has been decided in favour of the petitioner by Lady Paton. I refer to her Opinion dated 27 February 2007.

[2] On 23 March 2007 I heard a continued first hearing to resolve the remaining issues between the parties. It was accepted that prior to their removal the children were habitually resident in Poland. Miss Wylie for the respondent indicated that, standing Lady Paton's decision, she required to satisfy me (a) that a defence under Article 13 of the Convention applies and (b) that as a result I am satisfied that the petition should be refused in respect of one or both children. Otherwise, given the terms of Article 12 of the Convention, the petitioner would be entitled to the requested order. So far as relevant for present purposes, Article 13 provides:

"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 ... had consented to ... the removal; 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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

Miss Wylie founded on Article 13(a) and on the objection of the elder child, K.T.. She also indicated that Article 13(b) might be relevant, but only in a secondary manner, as will be explained below. Mr Burr for the petitioner accepted that K.T. was of such an age and maturity that it was appropriate that her views be taken into account. Both counsel proceeded on the basis that the petition could be determined now having regard to the affidavits and the other information lodged in process, along with the submissions of counsel.

[3] My attention was drawn to Council Regulation (EC) No. 2201/2003 which applies to this case, and in particular to the terms of Article 11. However, the focus of the discussion was on the Convention and whether any of the Article 13 defences were established.

[4] Much of the relevant background is not in dispute. The following emerges from the affidavits and the other material lodged in process. Everyone involved in these proceedings is Polish. After the divorce the children lived with the respondent. In the recent past many members of her immediate family have moved to the UK, including her two sisters, her brother and her parents. With the exception of one sister they are all living and working in Glasgow. Passports were obtained for the children. In 2005 the respondent spent some time in Scotland without the children. She returned to Poland awaiting permanent employment in Scotland. She obtained this in the summer of 2006. In August 2006 her mother brought the children from Poland to join their mother in Scotland. When in Poland the respondent struggled to find employment. She received child maintenance from the petitioner, but she had difficulty in making ends meet without support from her parents. She depended on them for accommodation. Along with other members of her family she considered that Scotland would provide an opportunity for well paid employment and a better life. The respondent and her children are now happy and well settled in Scotland. The children are doing well at school. They are very close and are supportive of each other.

[5] The evidence from the respondent and her mother suggests that after the divorce the petitioner was at best half hearted in his attempts to maintain contact with K.T.. He seemed more interested in his son. In responding to this, counsel for the petitioner indicated that the respondent might well have considered that the petitioner was not fully exercising his access rights, and that he was "fluctuating" in the matter. The affidavits and other material suggest that M.T. has a strong bond with his father, but that, for whatever reason, K.T. has taken against him. There is conflicting evidence as to whether the petitioner has made reasonable efforts to maintain contact with the children since their arrival in Scotland. However, the respondent remains keen that they should stay in contact with their father and see him whenever possible. The respondent and her family speak to a history of violence on the part of the petitioner towards both the respondent and K.T.. That history is denied. Miss Wylie did not place significant reliance upon it, stating that in terms of Article 11(4) of the Council Regulation it is necessary to assume that safe arrangements could be made for the care of the children in Poland pending the resolution of the matter by a Polish court. In this regard, the petitioner has commenced proceedings in Poland. They have been suspended until this petition is determined.

[6] There is a dispute between the parties as to whether the petitioner consented to the removal of the children to Scotland. This is significant standing the terms of Article 13(a). If the petitioner did consent, I could refuse the petition. The petitioner's position is that he did not consent to his children's departure from Poland. Rather he understood that their maternal grandmother was taking them on holiday to another part of Poland. He was then told that they were in Scotland. Within a short time he instigated the present proceedings seeking their return. His counsel founded on this as strong evidence that he did not consent to their removal. As regards the issuing of passports for the children, the petitioner observes that in itself this did not mean that they would be removed from Poland on a permanent basis, nor that he consented to their removal. His counsel stated that the petitioner's understanding was that the respondent would go to Scotland on a temporary basis without the children. The petitioner's brother and his partner have provided brief affidavits in support of the petitioner's position.

[7] On the other hand the respondent says that the removal of the children to Scotland was done with the knowledge and consent of the petitioner. In her first affidavit she states that he was in agreement with her plan that she would seek permanent employment in Scotland, after which the children would join her. She "understood that he consented to it". In the same affidavit she states that a week after the children arrived in Scotland she wrote to the petitioner "explaining that we were going to stay in Glasgow". On the face of it, it is at least odd that this was necessary, if all had been agreed in advance with the petitioner. The respondent's mother depones that the respondent often talked about the idea of moving to Scotland and bringing up the children in Scotland, and that this was not kept secret from the petitioner. "It was always the plan that the children would come over." The children's move to Scotland was not a spur of the moment decision. She had heard her daughter discussing matters on the telephone with the petitioner, perhaps in about early 2006. She says that her daughter showed her text messages from the petitioner stating that he did not love the children and that they could go to Scotland. She is in "absolutely no doubt" that the petitioner was aware of and agreed to the arrangements. She records that K.T. told her that her father often asked her when she was going to Scotland.

[8] There is a clear conflict in the affidavit evidence on this critical matter. Without oral testimony on oath subject to cross-examination it is difficult if not impossible to judge where the truth lies. However there is one other piece of evidence upon which the respondent's counsel placed considerable emphasis. In a supplementary affidavit the respondent states that in 2005 she sought an increase in aliment payments from the petitioner. In response he wrote a letter to the Polish court dated 15 April 2005. In it he said (as translated):

"As far as I know the financial situation of the applicant and children in the near future should really improve because she is planning to go to Scotland where the minimum wage is (Polish) 6,000zl per month".

The respondent contends that this is support for her overall position. In a letter dated 27 December 2006 to the Polish Ministry of Justice the petitioner explained this letter as follows:

"... in connection with my suspicions that she was willing to take the children away to Scotland, she stated that she would not leave the country with the children and would not deprive them of contact with their father, considering the son's illness, long-lasting treatment and the feeling that joins the children and their father."

This is the only mention of M.T. suffering from an illness. There is also discussion of the issue of passports for the children, something which I consider to be neutral on the critical question, although it can be noted that the petitioner objected to the granting of a passport to his son.

[9] For the respondent Miss Wylie submitted that the court could not reach a conclusion in her favour on the issue of consent solely on the basis of a choice between contradictory affidavits. In this regard she referred to D. v D. 2002 S.C. 33 at para. 8 where an Extra Division approved a submission that "where there were contradictions between affidavits, and no other evidence to support a conclusion one way or another, no conclusion could be drawn." However Miss Wylie contended that the court could accept evidence which is not contradicted or where one account is supported by extraneous evidence, namely the said letter of April 2005. She accepted that no clear, unequivocal statement of consent was obtained by the respondent before the children's removal, such as a signed letter of consent. Nor were any formal steps taken in relation to the Polish court order concerning the arrangements for the children. Miss Wylie referred me to K.T. v J.T. 2004 S.C. 323 (First Division) and in particular to a passage in the opinion of the Lord President, Lord Cullen at paras. 14 and 15 which indicates that the onus is on the parent who contends that there was consent to the removal of the children. Further there has to be proof of the "subjective intention of the wronged parent", something which is a question of fact. In reaching a view on this, greater weight should be given to "the contemporaneous words and actions of the wronged parent" than to his assertions in evidence.

[10] In my view the most relevant contemporaneous action in the present case is the petitioner's instigation of these proceedings shortly after the children's removal to Scotland. The letter of April 2005 was written over a year before the removal. In any event it does not specifically state that the children would live permanently in Scotland, nor that the petitioner consented to this. The petitioner's subsequent explanation of that letter does suggest that he was at least aware that there was a possibility that the children would be removed to Scotland, and that he was prepared to make use of that when resisting increased aliment payments. Further, his "suspicions" are consistent with the respondent's evidence that she did mention her plans to the petitioner. However in my view this episode does not amount to the necessary clear corroboration of the respondent's account which Miss Wylie submitted would allow the court to resolve the conflict of evidence in her favour.

[11] For the petitioner Mr Burr referred me to a decision of Wall J. in In Re W. [1995] 1 F.L.R. 878 at 888 to the effect that the evidence of consent must be clear, compelling and positive, and normally in writing, or at least contained in documentary material. However, in my view it is probably wrong to impose any specific requirements over and above that the court, bearing in mind that the search is for the petitioner's subjective intention at the time of the removal, must be satisfied on a balance of probabilities that he consented to the removal of the children, the onus being on the abducting parent. The affidavits from the respondent and her mother indicate that the petitioner consented to the removal, but looking at the available evidence as a whole, I am not satisfied that the respondent has discharged the onus upon her. There is no direct evidence that the petitioner consented to what happened at the time it was happening, such as a letter of consent from him or his active participation in the events. Nor is there evidence from an independent party confirming his consent. As discussed above, I do not regard the respondent's letter of April 2005, nor his subsequent explanation of it, as determinative of the issue in favour of the respondent. Rather in my view there is insufficient to counter the natural inference which can be taken from the petitioner raising these proceedings within a short time after the removal of the children to Scotland. I am not prepared to proceed on the basis of the disputed affidavit evidence of the respondent and her mother. In these circumstances I am not satisfied that the defence based upon Article 13(a) of the Convention has been established by the respondent.

[12] In the event that the defence of consent fails, the respondent relies on the views of her elder child K.T.. I have already referred to the relevant provisions in Article 13. Mr Burr accepted that K.T. is of sufficient age and maturity for her views to be taken into account. When they were expressed she was nearly 14 years old. At an earlier stage in the proceedings the court appointed Mary Loudon, advocate, to investigate K.T.'s views. She met K.T. twice in her home, and has provided a clear report on the matter. In addition the respondent has lodged an affidavit from K.T.. That affidavit is less helpful than it might have been, in that it does not focus on the correct question, namely K.T.'s response to a return to Poland for the specific purpose of allowing the Polish court to resolve the current dispute between her parents. However, with regard to the report and to her affidavit, K.T.'s position can be summarised as follows. She says no to a return to Poland, even for that limited purpose. She wants to be with her mother and brother. She wants to stay in Scotland where she is happy. She likes her new school and thinks that her prospects are better in Scotland. She has negative feelings towards her father and bad memories of some of her experiences in Poland. She has had no contact with her father since coming to Scotland.

[13] Miss Wylie founds on the views of K.T. Her desire to stay with her mother, who for some time has been her primary carer, is natural and understandable. It would be surprising if she expressed any different view. She is old enough to appreciate that her mother and her extended family have settled in Scotland. The prospect of a return to the stresses and uncertainties of a period back in Poland, allied to contentious Polish litigation, must seem daunting and unwelcome. However such anxieties will be inherent in perhaps most cases where the Convention is applied. Miss Wylie did not suggest that if both children are returned there would be a grave risk of harm or of an intolerable situation within the meaning of Article 13(b). They would be returning, perhaps for a short period, to their homeland and to familiar surroundings. I was informed that the respondent's parents still own property in the area. Further, if, as I consider is likely, the respondent accompanied the children back to Poland, this would do much to reassure K.T. In any event, the petitioner has sufficient accommodation for the children should that be necessary. Further, Miss Wylie indicated that, standing the terms of Article 11(4) of the Council Regulation, it must be assumed that the Polish authorities will ensure that the children are properly cared for if they are returned to Poland.

[14] In addition the position of M.T. must be taken into account. He is too young for his views to be weighed in the balance, thus they are unknown. However it would appear that he retains a bond with his father, and it would be undesirable that he should return to Poland on his own. I consider that these are factors which I am entitled to take into account when deciding whether, in the exercise of my discretion, I should uphold K.T.'s objection. However I should indicate that in themselves they have not been the determining factors. Rather they support the conclusion which I would have reached in any event on the basis of the other matters mentioned below. The petitioner has already commenced proceedings in the Polish court, which can provide a vehicle to resolve, hopefully expeditiously, the current dispute and regulate the arrangements for the children's care. It is unfortunate that for various reasons these proceedings in Scotland have taken so long to be resolved. This has meant that the children have been settled in Glasgow for over seven months. However this is not a decisive consideration. Article 12 envisages the Convention being applied up to twelve months after the date of the removal even if the children are well settled in their new environment. The whole purpose of the Convention, buttressed in this case by the terms of Article 11 of the Council Regulation, is that disputes of this nature should be resolved by the court of the children's habitual residence prior to their removal. In Singh v Singh 1998 S.C. 68 at 71/2 an Extra Division explained that this is an important policy to which exceptions should be allowed only "in situations which are indeed exceptional". This overall approach was confirmed by the First Division in W. v W. 2004 S.C. 63, from which the following can be derived. The Convention imposes a high threshold for justifying the withholding of an order for return. It must be applied in all but exceptional cases, in recognition of its clear purpose that the court of habitual residence prior to removal should resolve the parental dispute. Purely welfare considerations are for that court, which it is to be assumed will provide maximum protection for the returned children.

[15] Thus the question I have to decide is whether K.T.'s objection should be treated as being of sufficient weight to override the purpose of the Convention. Counsel for the petitioner submitted that the high standard necessary for a refusal of the petition has not been met in the circumstances of this case. In particular there is nothing special or exceptional in the circumstances nor in the reasons underlying K.T.'s objection to a return. Despite her age she does not have a veto on the matter. Rather the case law indicates that even in relation to a relatively mature child it will only be in an exceptional case that her views will prevail. This was the approach of Ward L.J. in Re T [Abduction: Child's Objections to Return] [2000] 2 F.L.R. 192 at pages 202-3.

[16] Miss Wylie submitted that the facts and circumstances justify upholding K.T.'s views. Her extended family has moved to Scotland. If the children are ordered to return, their mother will have to decide whether to give up her employment in Scotland. That of course would be unfortunate, but, in my view, it would be a consequence of her failure to resolve these matters in the proper way before she instigated the children's departure. It has been pointed out that the purpose of the Convention is to ensure that a parent does not gain an advantage by removing a child wrongfully from its country of usual residence, c.f. Balcombe L.J. in In Re E. (A Minor) (Abduction) [ 1989] 1 F.L.R. 135 at 142. I was told that there is no legal aid in Poland for these matters, and that the court there might take a long time to resolve the dispute. The respondent is concerned about the uncertainties as to how matters might turn out. Natural as these anxieties might be, neither they nor any of the other matters relied upon by Miss Wylie have persuaded me that this is a case where it would be appropriate to exercise my discretion to refuse the petition because of K.T.'s views. That would be proper only in a case of an exceptional nature. In my judgement this is not such a case. There is nothing special or of sufficient weight in the reasons for K.T.'s objection, nor in the surrounding circumstances, as would justify a refusal to implement the purpose of the Convention, namely that it should be a Polish court that weighs K.T.'s views in the balance when determining the arrangements for her and her brother's care. Thus I reject the submission that K.T.'s objection to a return to Poland should be upheld

[17] In the result Miss Wylie's final submission does not arise. It was that M.T. should not be returned to Poland without his sister because that would create a grave risk of the kind envisaged in Article 13(b). That submission depended on a decision that K.T.'s objection should be upheld, in which case it would have been necessary to consider whether her younger brother should be returned on his own.

[18] I shall grant the order sought in the petition and in the meantime put the case out By Order to discuss the practical arrangements.