OUTER HOUSE, COURT OF SESSION [2008] CSOH 42 |
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OPINION OF LORD TURNBULL in the Petition of C Petitioner; against C Respondent: for An Order under
the Child Abduction and Custody Act 1985. ________________ |
Petitioner, Mitchell QC, Innes; Drummond
Miller
First Respondent, Dowdalls; Bonar
Mackenzie
Fourth Respondent, Jack;
Fifth Respondent, Brabender; Morisons
Introduction
Background
[2] All
four of the children of the parties to this case have led an unusual life. The petitioner and the respondent were married
in the
[3] About
four months after the birth of this last child the family moved to
[4] On
[5] The
first respondent was evidently dissatisfied with the outcome of these legal
proceedings. On about 3 July 2005,
whilst exercising contact rights to the three younger children, he removed
all four from the jurisdiction of the French Courts. With the assistance of his sister he had made
arrangements to fly with the children to
[6] At
the date of their removal the children were aged 15, 12, 8 and 6 years
respectively. Within the first
respondent's affidavit there is only the most superficial explanation of his
actions. There is no explanation at all
as to why he chose to include the two younger children, standing the fact that
they were not included in his appeal against the decision of the French Family
Court at first instance. The children's
mother immediately reported them missing to the police. An enquiry was launched which appeared to
trace their air flights to
[7] Throughout
the time that her children were missing the petitioner had taken active steps
to locate their whereabouts. Amongst
other things she constantly used the internet to contact schools, churches and
other organisations across the world. On
[8] In
parallel with the petitioner's own enquiries other procedures had unfolded in
[9] By
late October of 2007 information was available to suggest that the first
respondent might be living in
[10] On the evening of
The Present Application
[11] In the present application the first respondent, relying on the provisions of articles 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"), argues that I should refuse to make an order for the return of any of the children. Each of Counsel for the children C and S also argued that I ought to refuse to make an order for the return of the individual child which they represented. In doing so each relied upon the provisions of both article 12 and article 13 of the Convention, which are in the following terms:
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.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
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.
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.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
[12] It was accepted that the removal of the children had been wrongful, that the present proceedings were commenced more than one year after the date of wrongful removal, that each of C and S had stated objections to being returned, and that both had reached an age and level of maturity at which it would be appropriate to take account of the view expressed by each.
The First Respondent's Argument
[13] The first respondent argued that all of the children were now
settled in their new environment. It was
explained that they lived in local authority housing which was of adequate size
for their needs. The eldest child M and
the first respondent's own mother also lived with them and assisted with the
care of the children. He himself did not
work and to date had acted as a full time carer. The eldest child M was a full time student
taking an HNC course in European business administration and languages at a
college in
[14] The child S was in his last year at primary school. He was said to be a sociable young boy who
enjoyed sporting activities. He attended
basketball and athletics classes at school and had followed these up by
attending events organised by the local authority during school holidays. He had participated in athletics events and
had come first in the local schools high jump competition. He was a member of a computer club at school.
He too had friends that he saw out of
school. He and his younger sister
attended Sunday school and were members of a youth club organised by a local
branch of the
[15] The child O is in primary five at the same school as her brother. She is musical and takes both violin and recorder lessons. She has taken part in school performances and is a member of her school choir. Like her brother she also attended local authority classes organised during the school holidays. Like her brother she was said to have established friendships at school very quickly. She is a confident child who is meeting the educational standards for her age. In addition to her other activities she attends a sign language club which meets on Tuesday lunchtimes at her school. The Head Teacher's affidavit describes both S and O as children who seem happy and content. She explains that she has met their elder siblings and the first respondent. She describes the family as being open and affectionate and notes that they speak about each other in a very caring way. In the same affidavit the Head Teacher also states that neither S nor O has ever spoken to any teacher at the school about their mother.
[16] Counsel for the first respondent recognised that the
extradition proceedings directed at him would be likely to have an impact on
the circumstances of the children and would be likely to do so quite soon. Although I was told that he was contesting
extradition, no explanation of the basis of this was given to me on his behalf
and no attempt was made to persuade me that there was a reasonable prospect of
his opposition being successful. I was
advised though that if returned to
[17] Counsel for the first respondent referred me to the cases of Perrin v Perrin 1994 S.C. 45, Soucie v Soucie 1995 S.C 134, J v K 2002 S.C. 450, Cannon v Cannon [2005] 1 WLR 32, In
re M (Children) (Abduction: Rights of Custody) [2007] 3 WLR 975 and Singh v Singh 1997 S.C. 68. On the basis of the law as explained in these cases
and on the evidence adduced, counsel for the first respondent invited me to
hold that the children are all settled in
The
Submissions for the children
[18] Counsel for each of C and S took me through the affidavits and
other material lodged on their behalf. They sought to reiterate the points relating
to schooling, social connections and other aspects of their lives in
[20] On S's behalf Ms Brabender explained to me that S did wish
to see his mother and had felt the same whilst apart from her. Although it was not in his affidavit, she
explained that there was a reason why he made no effort to contact his mother
after leaving
Submissions for the Petitioner
[21] Mr Mitchell QC for the petitioner submitted that in order
to answer the question of whether settlement for the purposes of article 12
of the Convention had been demonstrated, the court would require to include in
its assessment an examination of the children's history to date and of their
future arrangements. He pointed out that
even now there was no explanation of which countries the children had been in
throughout the period since July 2005, of what they were doing whilst in each
location or why they moved on. Although
it seemed they had been at school in the
[22] When it came to the arguments advanced under article 13 of
the Convention Mr Mitchell restricted his submissions to the weight to be given
by the court to the objections stated and to the question of whether on a
proper analysis it would be right to exercise my discretion in favour of
return. To these ends he sought to
examine what it was that each child was saying and why they were doing so. This was important in order to understand to
what extent the objections were "authentically their own". As part of this exercise Mr Mitchell
noted that the first respondent's plea in law to the effect that there was a
grave risk that the return of the children to France would expose them to
physical or psychological harm or otherwise place them in an intolerable
situation, had been departed from. Despite
that, each of C and S included in their affidavits certain concerns about
returning to live with their mother on account of what they said were aspects
of her previous behaviour towards them. In order to properly weigh these concerns and
to determine to what extent, if any, they were the consequence of their
father's influence, it was necessary to examine certain of the reports prepared
during the currency of the French divorce and custody litigation. He drew my attention to what he said was a
history of unsupported claims which the first respondent had made against the
petitioner during this period. Having
done so Mr Mitchell submitted that this documentation vouched the fact
that throughout the process in
[23] Further, Mr Mitchell submitted that the objections which were stated could not be met by refusing to make an order for return. He pointed out that if the children's objection to being removed was based on a sense of stability having been achieved during their time in Dundee, then that was about to end in any event, with their father's incarceration and with their mother seeking to exercise contact. He described the concerns expressed about schooling as speculative in the absence of any expert evidence led on the part of the respondents. In the absence of the first respondent demonstrating that the child O had become settled in her new environment, in the sense contemplated by article 12 of the Convention, I would be bound to order her return. Counsel raised the question of what effect this would have on the objections stated by C and S and pointed out that there was no consideration of such an outcome in the affidavits lodged on behalf of any respondent.
[24] In all of these circumstances Mr Mitchell invited me to hold
that it had not been demonstrated that the children were now settled in their
new environment, in terms of article 12 of the Convention and moved me to make an order for the return of
each child to
Discussion
[25] At the hearing before me there was little by way of
disagreement between the parties as to the law to be applied. There was however some discussion as to the
effect of their Lordships' decision in the case of Re M. Some of that discussion centred around what effect, if any,
this decision had on the advice given to judges in the Family Court in
1. What was the proper construction of the phrase "the child is now settled in its new environment", and
2. Once the defendant has proved that the child is now settled in its new environment, does the court nevertheless retain a residual discretion to order the child's return.
When giving the judgement of the
court in Cannon, Thorpe LJ, in
addressing the second issue, made certain comments as to the approach to the
exercise of discretion under the Convention (para 38). He seemed to
suggest that if the court was exercising a discretion available under the
Convention then it would require to do so having due regard to the overriding
objectives of the Convention. When the
House of Lords came to hear Re M it
was asked to consider the scope and application of the exceptions to the duty
to return children wrongly removed contained within articles 12 and 13 of the
Convention. In particular, as can be
seen from paragraph 9 of the speech of Baroness Hale of
"My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would therefore respectfully agree with Thorpe LJ in the passage quoted at paragraph 32 above, save for the word "overriding" if it suggests that Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not".
[26] The decision in Cannon
was not overruled and no other criticism of the advice given was voiced. I should also say that contrary to a
submission made by counsel for S, it is clear that in paragraph 42 of Re M Baroness Hale is describing a
bundle of considerations which may be taken into account in the exercise of the
court's discretion under the Convention, should it have reached the stage of
holding that an exception under article 12 or 13 had been made out. This is obvious from the fact that it features
as part of the discussion commencing at paragraph 32, under the heading "Discretion under the ordinary law and under
the Convention". Finally, in this
context, I should perhaps note that whilst no counsel was able to inform me as
to the eventual outcome for the child in the case of Cannon, it is clear from paragraph 27 of Re M that the court held that she was settled and in the exercise
of its discretion refused to order her return.
[27] Since I am dealing with an application founded on the terms of the Convention it is necessary to start by bearing in mind what the Convention seeks to achieve. The objects of the Convention are (a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and (b) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. These objects reflect the principle that it is in the best interests of children in general to have custody determined by the court of their habitual residence. However, the Convention itself recognises some limited and precise circumstances when it will not be in the best interests of such children to return them to the country from which they have been wrongfully removed. Thus it provides that the court may decline to make an order for the child's return in the circumstances provided for by each of articles 12 and 13.
Article
12
[28] The proceedings in this application were not commenced until
more than one year after C, S and O were wrongfully removed from
[29] The party arguing that the court should decline to make an order carries the burden of establishing that the requisite degree of settlement has been demonstrated. What then is meant by the phrase the child is now settled in its new environment? It clearly means more than mere adjustment to surroundings. It is accepted that the concept of "settled" has two constituents. It has a physical element of relating to being established in a community and an environment and it has an emotional constituent denoting security and stability. In cases where settlement is argued the court will need to examine the evidence relating to these twin constituents and ask itself whether that evidence demonstrates that the interest of the child in not being uprooted is so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place. In cases where settlement is argued on account of wrongful removal followed by concealment, further considerations can arise. In such cases a broad and purposive construction of the phrase under discussion may be appropriate in order to fully reflect the factor of concealment or subterfuge which has contributed to the passage of time. The extent to which it will be appropriate to take this purposive approach may depend on the degree of the abductor's turpitude and the tension, if any, which exists between this factor and the quality of the environment thereby achieved. All of these propositions I take from the cases of Soucie and Cannon.
[30] In the present action it is undoubtedly the case that all three children appear to be relating well to their educational and social environment. Counsel for the respondents relied upon the discussion as to what constituted the new environment to be found in the judgment of Bracewell J in Re N (Minors) (Abduction) [1991] 1FLR 413 @ 418 C-D. That decision had been referred to and adopted in various of the subsequent cases to which I was referred. The quote relied upon was that the new environment must encompass "place, home, school, people, friends, activities and opportunities". I accept without hesitation that the evidence in this case has linked the children to each of these considerations. What matters though is the nature and extent of connection with these constituent parts of the concept of the new environment. In order to understand what Bracewell J saw as the type of link which would be eloquent of settlement, one has to read the passage relied upon in full. It commences as a consideration of what had been meant by a phrase "long term settled position" as had been used in an earlier case. She then says:
"The phrase long term was not defined, but I find that it is the opposite of transient; it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word new is significant, and in my judgement it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment."
When the Inner House came to examine the meaning of article 12 in the case of P v S it acknowledged that there was no warrant for importing the phrase "long term" into the meaning of "settled". However they agreed that it was correct to contrast it with transient and otherwise followed the approach of Bracewell J, including acknowledging the need for a projection into the future. Certain of the circumstances of P v S find an echo in the present case. Equally the opinion of the court at paragraph 45 is illuminating. I quote from two passages in that paragraph where the court expands upon the meaning of settled for these purposes:
"A situation which is stable is one which can reasonably be relied upon to last, as matters stand, and which does not contain indications that it is likely to change radically or fall apart. Equally, if the circumstances do not afford a basis for such reliance, and contain elements indicating that change is liable to occur, it will be less acceptable to describe them as stable, or to hold that a child in these uncertain circumstances can properly be described as settled in his new environment."
"Even if, like all the other terms, the expression "long-term" is not ideal we are in no doubt that in judging the present situation, and asking whether a child is settled at the present time, projection as to what is liable to happen into the future is an inherent element in the word "settled", and reference to the intention of others, and in particular the abducting parent, very likely to be essential. Indeed, the justification in principle for an exception from the general rule, when a child is settled in his new environment, seems to us to be found in the fact that the continuance of his present circumstances into the future looks likely, and ought not to be interfered with. If no such continuity into the future was expected, it is hard to see why the status quo should be favoured as an exception."
[31] When I come to consider the life which the children in the
present case now have in
[32] I also take the view that the first respondent's conduct in
this case is something which ought to be taken account of when assessing
whether he can successfully argue that settlement has been established. Thorpe LJ in the case of Cannon supported the conclusion that it would be very difficult
indeed for a parent who has hidden a child away to demonstrate that it is
settled in its new environment. He
specifically acknowledged (para 54)
that the degree of wrong in abduction cases would vary from case to case, and
clearly saw the degree of wrong as something which could impact on the ease
with which settlement could be established.
In the present case Mr Mitchell submitted that the wrongful removal
was cold blooded, carefully planned, carried out in the face of the orders of
the
[33] In my opinion there was much force in the descriptions applied by Mr Mitchell to the nature of the first respondent's conduct. He made a selfish and determined effort to excise their mother from the lives of his children. He was successful in his efforts over a period of years and showed no indication of ever relenting in his determination. In taking account of this factor I do not see myself as engaging in moral condemnation of the sort Baroness Hale warned against at paragraph 56 of her speech in the case of Re D. In my judgement I am doing no more than assessing the level of the first respondent's criminality. In this case I can do so on the basis of the features described by Mr Mitchell, which are not in controversy, and in light of the account given of his actions in the first respondent's affidavit. In any event, as I have indicated, this approach is consistent with what I see as the helpful advice given in the case of Cannon. The case of Cannon does not seem to have been referred to in Re D, which dealt with the very different question of whether the removal was wrongful. Had Baroness Hale intended to modify the advice given by the Court of Appeal I would have expected her to have made that explicit when the case of Cannon was before the House just over a year later in the case of Re M. There was then no criticism of what the Court of Appeal had said about how the phrase "the child is now settled in its new environment" was to be construed and Baroness Hale's own comments, at paragraph 42, about the importance of sending out the message that there are no safe havens among the contracting states, seem to me to be consistent with what Thorpe LJ was saying.
[34] The next factor which I consider it right to take account of is
the stability of the children's current domestic circumstances. I have been given no reason to proceed on any
other basis than that the first respondent will shortly be extradited to
[35] Weighing the factors relating to the children's educational and social circumstances against the factors I have identified above I have arrived at the conclusion that the first respondent has failed to establish settlement of any of the children concerned in the sense provided for by article 12 of the Convention. Article 12 was also of course relied upon separately by each of counsel for C and S in seeking to persuade me that I should not make an order for return. The circumstances which they relied upon were of course almost identical to those relied upon by their father. I recognise however that in considering the arguments advanced on their behalf, it might not be right to take account of the nature of their father's conduct in the way contemplated in Cannon. However, aspects of what he has done do directly impact upon the question of whether they are settled. It is he who has exposed them to so many different places of residence. It is he who created the artificial environment in which their mother had no place or role. Once these features are present they contribute to the assessment of stability and the emotional component of settlement, regardless of who is to blame. Accordingly, even if I put aside any question of the first respondent's turpitude when weighing the submissions made on behalf of C and S, there remain aspects of their circumstances which point away from settlement being established. In addition, the circumstances surrounding their immediate and medium term future are so uncertain as to count strongly against them being properly described as settled in their new environment. Taking these factors in combination I have arrived at the conclusion that even on this approach, neither C nor S have independently satisfied me that they are now settled in their new environment, in the sense that that phrase has been interpreted in the authorities which I have mentioned.
Article 13
[36] Article 13 of the Convention provides that notwithstanding my decision in relation to the application of article 12, I will not be bound to return a child concerned if any of certain other circumstances are established by the person opposing return. Three distinct exceptions are provided for. They are:
[37] Each of the first respondent, C and S has presented an argument against return based on the third exception. No argument was presented by any respondent in relation to the second exception. The consequence is that in light of my decision as to settlement I have no option but to make an order for the return of the child O. This decision may impact upon the further arguments advanced.
[38] All parties were agreed that I should approach the article 13 submissions by accepting that each of C and S had stated an objection to being returned to France and by accepting that each has reached an age and level of maturity at which it is appropriate to take account of their views. I should then consider what weight to give to the objection stated by an exercise of my discretion. A range of other considerations may also fall to be weighed in this exercise, but I do not require to be satisfied that the case is exceptional before being entitled to refuse to make an order for return.
[39] The starting point for these purposes is to establish what the
objection to being returned is. C and S both like living in
[40] In this exercise of discretion I ought of course to take account of the Convention policy. I ought to take account not just of the fact of objection but its nature and basis. I ought to take account of the views of each of C and S themselves and I can take account of the wider considerations of the rights and welfare of each. I ought also to bear in mind that the older the child is, the greater the weight that his or her objection is likely to carry. Of course, it is part and parcel of weighing certain of these aspects, that I require to come to a view as to the extent to which the complaints or objections are, to borrow Baroness Hale's phrase, authentically their own.
[41] In his submissions Mr Mitchell took me through the
contents of productions 6/29 - 6/39. These
comprise reports and letters prepared between November 2001 and November 2005
in the context of the litigation conducted in
[42] A reading of the reports prepared during the period from April 2002 until March 2005 discloses that all of those providing professional advice to the French Courts repeatedly commented upon the adverse nature of the first respondent's conduct and influence upon the children. He was noted as involving the children in the dispute between himself and his wife, as being manipulative and as seeking to turn the children against their mother. He was described as a man whose personal convictions were overwhelming, who refused to listen to anyone else's view but his own and who adversely affected and limited the way in which the children expressed themselves and thought. He was described as posing a danger to the children's welfare. By contrast, the same reports commented upon the realistic and considerate attitude adopted by the petitioner.
[43] This material accordingly provides me with a basis for exercising caution in assessing the criticisms of their mother's care which are now contained in the affidavits of C and S and which are supported by the affidavits of the first respondent himself, his own mother and the eldest boy M. It also provides me with independent information upon which to assess the question of the first respondent's influence over the children. The descriptions of the first respondent's attitude and personality cast light on the otherwise surprising fact that, throughout their absence of nearly two and a half years, there was no contact of any description between any of the children and their mother. This despite the passing of such obvious emotional triggers as birthdays and Christmas. I am satisfied, taking these factors together, that the first respondent has throughout exercised a degree of control and influence over each of the children as should cause me to doubt the extent to which the objections advanced are authentically those of the children concerned.
[44] I do of course recognise that return to
[45] An aspect of the objection expressed by each child is also that
they do not wish to be separated from their father, nor from any of their
siblings. They also state that they do
wish to see their mother. It is hardly
surprising, given what they have been through, that they seek a period of
stability. However, as already
discussed, these are aspirations which cannot all be catered for. Their father is likely to be extradited, their
sister O must be returned to
[46] In P v S Lord Bonomy commented that disruption to education and to the child's life in general were, sadly, almost unavoidable features of cases like these. There is certainly likely to be a level of such disruption in many cases in which the court grants an application for return. However, any such disruption has as its root cause the act of the abducting parent. In the present case I have taken account of the fact that each of C and S object to being returned for the reasons given. I have been particularly conscious of the age of C and the need to bear that fully in mind in assessing the weight to be attached to what she has to say. However, I have found that their father's influence is a strong factor in what both C and S say and I have taken account of that in deciding what weight to attach to the concerns expressed by each. In so far as they have objections which are authentically their own, I have sought to assess the strength and validity of those in light of the countervailing factors which I have identified and discussed. In the end I have come to the view that I ought not to give effect to the objections stated. Instead I ought to make an order for their return as sought by their mother. In taking this approach I do not see myself as causing the children concerned to suffer for the sake of general deterrence of the evil of child abduction. I have taken account of the policy of the Convention in considering the arguments advanced under this head, but only as one of a number of other factors. In any event, the facts of Re M, in which such a comment was made, are quite different from the facts of the case before me.