Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH NUMBER136
P983/09	OPINION OF LADY SMITH in the Petition of BJZ Petitioner; for An order under the Child Abduction and Custody Act 1985 ­­­­­­­­­­­­­­­­­________________

For petitioners: Hodge, Advocate; Bonar Mackenzie WS

For First respondent: Wild, Advocate; Balfour & Manson, LLP

For Second respondent: Inglis, Advocate; Drummond Miller

16 September 2009

Introduction

[1] This is an application for an order for the return of a child made under the Hague Convention on Child Abduction, incorporated into our domestic law by means of the Child Abduction and Custody Act 1985. It is an application for return of the child M to the Netherlands. M is 15 years old. The petitioners are a public authority described in the petition as the Dutch Youth Welfare Organisation.

Background

[2] Turning to the background history, on 16 January 1997, a supervision order was made in respect of M. Supervision responsibilities were thereby placed on the petitioners by the District Court of Middelburg Civil Division ("DCM"),. Put shortly, the reason for the making of that and subsequent supervision orders was that certain problems had arisen concerning M's care by his mother, O, who is the first respondent. The supervision orders were reviewed by DCM each year until 17 August 2000, as seems to be evident from 6/31 of process. An order was made authorising the placing of M in foster care. His foster carers were his grandparents who live in the Netherlands. Supervision orders in respect of M charging the petitioners with supervision responsibility for him continued to be renewed each year. In particular, on 17 August 2008 the supervision order was extended until 17 August 2009.

[3] M got into trouble with the authorities in his early teens. In particular, he was responsible for riding a stolen moped on one occasion and for stealing shoes on another occasion. He was given community service but DCM appears to have determined that he had breached it. On 8 December 2008, according to 6/11 of process, DCM changed the authorisation regarding the placement of M in foster care to an authorisation to place him in what is referred to as "closed youth care accommodation", a placement which by that time had actually happened. He appears to have been placed there at the end of November 2008. The authorisation of his placement in closed youth care accommodation extended only to 5 March 2009.

[4] On 5 March 2009 the authorisation to retain M in closed youth care accommodation was again extended by DCM, this time until 17 August 2009. In April 2009 M removed himself from the Netherlands and made his way to Scotland to O's home in Greenock where he has remained, retained by her, ever since then. On 14 August 2009 it appears that, by an order of DCM which specifies the first respondent's address correctly, DCM extended the supervision order from 17 August 2009 to 17 August 2010. DCM also, in terms of the same order, appears to have granted authorisation for an out of home placement for M in "a facility of a care provider" from 17 August 2009 till 17 February 2010. However, the order then states:

"Declares this Court order provisionally enforceable to this extent" and

"stipulates that this authorisation will remain in effect and insofar as an indication for treatment decision which advises an out of home placement in a juvenile of the same category is issued within four weeks from today".

[5] No indication for treatment decision was issued within four weeks of that date. The deadline was last Friday, 11 September 2009. It is clear, and was accepted by the petitioners that whilst the supervision order appears to remain in place, the authorisation to place M in a facility of a care provider which, for present purposes, I assume includes closed youth care accommodation of the sort maintained by the petitioners, fell last Friday.

The First Respondent's Parental Rights

[6] The Childcare and Protection Board of the Netherlands, which is a different body from the petitioners, applied to the DCM for an order that O be "forcibly relieved" (see: 6/17 of process ) of her parental authority in circumstances where they correctly stated her address in that report and, having interviewed her and M, were aware that both she and M objected to the removal of her parental rights. M's and O's position to that effect is clearly set out in 6/17, a document which is dated 15 April 2009 and sets out the reasoning behind the Board's application. Part of that reasoning appears to be that the Dutch child care authorities had had difficulties in making contact with O in the past but the report includes not only O's correct address but details of a telephone conversation between them and O on 25 February 2009 (during which she expressed a firm belief that M should be living with her) and so the logic of that rationale may seem to be hard to accept. However, that is but background to what is relevant to the present application.

DMC: Order of 19 August 2009 (6/25)

[7] I turn then to 6/25 of process which bears to be a copy of an order of DCM dated 19 August 2009. As it turns out, this order is of critical importance to the petitioner's case. However, notwithstanding the provisions of Section 7 of the Child Abduction and Custody Act 1985, they have not provided a duly authenticated copy of it. The copy provided does not even bear to have been signed. Thus, even if I was satisfied that the wording of 6/25 relates to the conferring of rights of custody within the meaning of article 3 of the Convention which, for reasons that I will explain, I am not, I would not have been prepared to hold that the order had been proved.

[8] Turning to 6/25, it is an order which appears to be in response to the Board's request set out in 6/17 to have O relieved of her parental authority. It is not apparent why the decision to seek the removal of her parental rights which had evidently been taken by 15 April 2009 was not acted on prior to 19 August 2009 although it is impossible to ignore the fact that by the latter date, M had removed himself from the jurisdiction and the petitioners were likely to lose the right of custody that had been conferred on them five days earlier (as they would not be able to compile an up to date treatment decision for a minor who had left their de facto care in April and with whom they had had no subsequent contact) in which case no-one in the Netherlands would have had any subsisting right of custody so as to continue to pursue in this court what I have no doubt the Dutch child care authorities considered, in good faith, were their responsibilities in respect of M. It is difficult to resist the impression that 6/25 was sought as a reaction to M having removed himself and been retained by his mother in Scotland. 6/25 includes the following:

"Court Order dated 19^th August 2009

in the case of

The Child Protection Board [Raad voor de Kinderberscherming] (hereinafter "the Board"), established in Middelburg

Petitioner,

Representative at the hearing: Mr H. Ramstijn

Versus:

... (hereinafter: "the mother")

At the present time actually residing at an unknown address in Scotland,

Respondent.

The following are deemed interested parties in the present case:

...

...M ... (hereinafter "the minor") currently residing with his mother in Scotland.

...

...

4. The Assessment
... pursuant to the provisions of Section 1:266 of the Civil Code a parent can be relieved of the parental authority over one or more of his/her children if this parent is unable to fulfil his/her parental duties, provided that this is not contrary to the best interests of the children. In view of Section 1:268(1) of the Civil Code relief cannot be ordered, save for a number of exceptions, if the parent objects.

4.2  It is apparent from the submitted documents that the mother has informed the Board that she cannot agree to the petition to relieve her of her parental authority. However, she has not put forward a defence, although she has been given a proper opportunity to do so, and therefore the District Court is assuming that the mother is no longer opposing the petition ...

...

... The District Court

relieves the mother, ...O ... of her parental authority over the minor M ... born ... on 16August 1994;

appoints the Zeeland Youth Care Agency Foundation as guardian over the aforementioned minor;

orders the mother to render account of her administration to the guardian;

declares this Court Order provisionally enforceable."

[9] The Zeeland Youth Care Agency Foundation is another name for the petitioners. As to my particular considerations in respect of 6/25, I would comment as follows. Firstly, it states that the first respondent's address is unknown. It so states despite the fact that the applicants, the Board, knew what was her correct address (it is stated on 6/17) and DMC itself had correctly stated her address in their order of 14 August 2009, only some five days earlier. Secondly, 6/25 notes that M is an interested party but there is no indication of any attempt having been made to serve the petition on him despite the provisions of article 12 the United Nations Convention on the Rights of the Child 1991. Thirdly, the petition for discharge of parental authority has not been lodged with this application for return order, although it is referred to in the order of 19 August 2009. I do not accordingly know what was actually applied for. Fourthly, the documents enclosed with the Childcare and Protection Board's petition have not been lodged with this application although, again, they are referred to in the order of 19 August. Fifthly, limited reference is made in the narrative attached to the order in 6/25 of process to certain articles of the Dutch Civil Code but not sufficient to be explanatory of the full meaning and import of the order.

The Dutch Civil Code

[10] The information I have been provided with by the petitioners regarding the meaning and effect of the order is wholly unsatisfactory. So far as I have been able to ascertain through my own researches into the Dutch Civil Code from the text of those articles which have been provided in 6/19 of process and via the internet, it seems that Article 1:254 provides that where a minor grows up in a manner which constitutes a serious threat to his or her moral or mental interests or health the judge of the Children's Court may vest what is referred to as an institution for family guardianship with his care and supervision. It appears to provide that the judge can do so on the application of the Child Protection Board but it also appears to provide that in so doing the Court is obliged to have regard to the religious convictions and outlook on life of the minor himself and of the family of which he is a member. I observe, in passing, that there is no indication in the material before me that the Court did have such regard. More importantly though, Article 254 does not appear to deal with guardianship.

[11] I note that under, Article 256, it appears that the Court is obliged to specify the duration of the care and supervision provided for under Article 254. That no doubt explains why the supervision orders have been renewed year on year in this case, the provision on each occasion being for an order for supervision of one year's duration only.

[12] 6/25 refers to Article 1:266 and it is evident that that article empowers the Court to discharge a parent of his or her parental rights. The code makes provision for consensual discharge and also for non-consensual discharge. Regarding issues of consent, 6/25 contains the narrative about O's position which is set out above.

[13] As 6/25 shows, DMC appear to have made an assumption of non-opposition by the first respondent whilst recognising that her position is that she cannot agree to the petition to relieve her of her parental authority. Doing the best I can on the available material, it seems that the Court would still have required, absent actual consent, to regard this application as being one in respect of non-consensual discharge of parental rights. That is, further, what DMC appears to have done.

[14] It appears that under Article 272(1) the Court can, in circumstances which give rise to non-consensual discharge of parental rights, confer what is referred to as interim "provisional" guardianship on an institution for family guardianship. However, if it does so it must, it seems, specify what particular powers are thereby conferred. The petitioners will well understand, given the case in which they were petitioners against Y (dated 14 April 2000 and reported on the Incadat website), that if the only powers conferred on the institution are powers of supervision they will not be regarded as rights of custody for the purposes of Article 3 of the Convention on Child Abduction. The petitioners must accordingly be taken to be aware of the importance of their powers being particularly specified yet there are no specific powers in the order.

[15] Further there would appear, under the Dutch Civil Code, to be different aspects to guardianship. It appears that there are powers in respect of both the person and in respect of the property of the person. The reference in the 19 August 2009 order to the mother being required to provide an account of administration would appear to relate to property matters and to that extent it can perhaps safely be inferred that guardianship in respect of property was conferred. But power in respect of the person is different and I do not see that I can infer that any such power was conferred to any extent without there being any specification to that effect.

[16] On the face of it, 6/25 appears to be a provisional guardianship order but not only does it not specify what particular powers are conferred or for what period, but there is no explanation of the meaning or import of it only being provisional in nature and I have not been able to ascertain what that means either from the material placed before me or otherwise.

[17] It was only in the course of the hearing yesterday that it became apparent that the petitioners were driven to relying on 6/25 and only 6/25 for their submission that they had relevant rights of custody. The importance of the precise meaning and effect of any order that was pronounced on 19 August 2009 became clear. On the motion of their counsel, Ms Hodge, I adjourned for an hour to enable them to make enquiries of the petitioners. The response was contained in a fax which became 6/37 of process. It states:

"In accordance with the Dutch Civil Law the term guardianship refers to parental authority rights held and executed by a person other than the biological parent or an institution (BJ). Often if guardianship is held by a person they will have both the power to decide over the child's upbringing as well as the custody rights, taking care of the child on a day to day basis. If guardianship is held by an institution they too will hold the powers to decide. As the child cannot live with the BJ they will exercise the custodial rights by placing the child with a foster family or institution."

[18] So far as the first paragraph of that note is concerned, putting to one side for the moment the question of whether it is ambiguous regarding the question of whether or not it was possible for guardianship to be conferred on the petitioners, it begs the question: what parental authority rights? Not every such right amounts to the right of custody for the purposes of Article 3 of the Convention. As to the second part of the fax , it advises what "often" happens not what invariably happens . The fax makes no reference to 6/25 nor seeks to explain it .

The Present Petition and Application
[19] For the purposes of the application before me for an order for the return of M, the petitioners require to establish that at the time M was retained in Scotland they had a right of custody within the meaning of Article 3 of the Convention and they also require to show that they still have such a right. If they no longer have a relevant right of custody then they no longer have the requisite title and interest to seek an order for the return of M to the Netherlands. It was accepted by Ms Hodge for the petitioners that their case was wholly dependent on her being able to persuade me that the petitioner's present right of custody was to be found in 6/25 as explained by 6/37.

[20] I turn to Articles 1 and 2 of the petition. The petitioners have not adjusted their averments. On averment, they rely solely on the authorisation of 5 March 2009 for the proposition that they have subsisting rights of custody. However, whilst DMC has continued the supervision element of that order to 17 August 2010, the supervision responsibility does not expressly or impliedly confer any right of custody. The petitioners now accept that they cannot rely on the Court's authorisation for placing M in a care facility dated 14 August (or indeed any of the earlier orders giving similar authorisation dating back to April 2008, all of which have expired). In these circumstances the petitioners require to prove the order of 19 August and also to show that it confers a right of custody on them. As I have already explained, I do not accept that they have proved the order since they have only lodged an unsigned and unauthenticated copy of it. Further, as to the meaning and effect of what is set out in 6/25 of process, the material placed before me is wholly unsatisfactory. As abovenoted, I have not been shown the petition on which the order was based and it is not possible to understand how the first petitioner's address could be stated as not known when it was known to both the applicant Board and the Court. I should add that I was advised by the first respondent's counsel, that the petition to have her deprived of her parental rights was not served on her and she was ignorant of it until this week. There is then the fact that the application was not served on M, despite the knowledge of his objection to it. Then, guardianship can, it seems, involve both responsibilities and powers so far as the person appointed guardian is concerned and I cannot, on the material before me conclude that rights of custody are necessarily implied in the grant of guardianship. The order is silent on the matter of what powers, if any, are conferred on the petitioners. The order is said to be provisionally enforceable only. The short note obtained yesterday afternoon set out in 6/37 of process does not help, even giving it the benefit of the doubt and treating the first paragraph as meaning to say that the petitioners could have guardianship rights conferred on them. It does not assist in identifying what exactly any order of 19 August 2009 conferred.

[21] The petitioners have been aware of M having absconded since April. They immediately believed the first respondent had abducted him. Almost four weeks have passed since 19 August. The petitioners knew that the hearing that started yesterday was going to take place as of 15 August. They can be taken to know the importance, for article 3 purposes, of establishing that they were possessed of relevant rights of custody.

[22] In these circumstances, were the petitioners able to show that they still have relevant rights of custody, it is accordingly entirely reasonable to expect them to have been in a position to present a clear case to that effect by yesterday. They did not and have not done so. Indeed, the indications are rather to the effect that if an order was issued on 19 August 2009, it did not validly confer on them the requisite custody rights. It is in these circumstances only reasonable to conclude that they are not in a position to show that they do in fact have such rights. In these circumstances I am satisfied that the petitioner's application should be refused and I will pronounce an interlocutor dismissing the petition.