Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 121
P484/12	OPINION OF LORD STEWART in the Petition TLMP Petitioner for orders under the Child Abduction and Custody Act 1985 and Answers for AWP Respondent ­­­­­­­­­­­­­­­­­________________

Petitioner: Burr, advocate; Wright & Crawford, solicitors

Respondent: A McKay, advocate; Drummond Miller LLP, solicitors

9 July 2012

[1] This is a petition in terms of art. 12 of the Hague Convention for return of a child "wrongfully removed or retained". The "Hague Convention" means the Convention on the Civil Aspects of International Child Abduction. The return order is sought for return of the child to California, United States of America. The United States is a signatory of the Hague Convention, as is the United Kingdom. The Hague Convention is substantially incorporated into United Kingdom domestic law by the Child Abduction and Custody Act 1985 s. 1(2) and sched. 1.

[2] The child, AKWP, is a boy aged 4 years and 8 months. The petitioner, TLMP, aged 27 years, is the child's mother, resident in California. The child and his mother are United States citizens. The child's father, AWP, aged 31 years, is a British citizen resident in Scotland. He is the respondent to the Petition. On 1 March 2011 the respondent brought the child from California to the Scotland. The child was then aged 3 years and 6 months. The petitioner, who remained in California, admits that this move was by agreement. The terms of the agreement are disputed.

[3] Since 1 March 2011 the child has lived with the respondent in the paternal grandmother's house at Dunoon, Argyll & Bute, Scotland. The petitioner alleges that the child has been "wrongfully retained" by the respondent in Scotland since 24 May 2011. Having heard submissions of counsel at a Second Hearing on 19, 20 and 21 June 2012 and supplementary submissions at a hearing By Order on 9 July 2012, I have concluded that the child was, and is, being wrongfully retained in Scotland and I have on 9 July 2012 repelled the pleas-in-law for the respondent and granted the prayer of the petition insofar as seeking a return order, with full reasons to be given later. This Opinion gives my reasons.

[4] I am satisfied that returning the child to the jurisdiction of the Californian courts is not contrary to the interests of the child at this time and does not involve a violation of art. 8 of the European Convention of Human Rights [ECHR] (right to respect for private and family life). The future arrangements for the care and upbringing of the child will be determined by the Superior Court of California. The Superior Court of California has been seised of the matter since 16 December 2011 when the petitioner raised divorce proceedings in that forum. A status conference has been fixed for 13 November 2012. My understanding is that a status conference is a pre-trial case-management hearing [eg Federal Rules of Civil Procedure, rule 16]. A number of assertions and allegations are made in the present proceedings which bear on the welfare of the child. This Court will, subject to any observations by the parties, arrange for copies of the materials put before this Court to be available for the Californian court and respectfully suggests that a welfare inquiry should be conducted as soon as practicable. On the information put before me it remains an open question whether the child's best interests in the longer term would be served by residing with his mother or with his father.

Hague Convention return orders

[5] In terms of the Hague Convention art. 12, where a child has been wrongfully removed or retained and a period of less than a year has elapsed at the date of commencement of proceedings, the relevant signatory-state authority must order the return of the child "forthwith". The Hague Convention art. 11 requires signatory-state authorities to act expeditiously. Anything more than six weeks in determining return order proceedings is accounted a "delay". The procedure is a summary one. The Hague Convention art. 12 implies that where the peremptory return obligation is engaged, whether or not the child has become settled in the requested state is irrelevant. The Court of Session is the Hague Convention authority in this part of the United Kingdom. The Rules of the Court of Session envisage that applications will normally be determined on affidavits and other documentary evidence [RCS 70.6]. This makes sense where the applicant party and his or her witnesses may be thousands of miles away, possibly with no means of attending the Court. The principle of equality of arms in terms of art. 6 ECHR must be respected: undue advantage should not be conferred on the "home team". Matters cannot, and are not required to be weighed in too fine a balance. Detailed child welfare considerations are, generally speaking, not a consideration for the authorities of the requested state; or, to put it another way, it is assumed that the prompt Hague Convention return of a wrongfully removed or retained child is in the child's best interests and does not involve a violation of art. 8 ECHR rights [Dickson v Dickson 1990 SCLR 692 at 701C-E per Lord President; IGR petitioner [2011] CSOH 208, 20 December 2011, Lord Brodie, at § 21].

[6] The first object of the Hague Convention is to deter parents from taking the law into their own hands so as to pre-empt the result of any dispute about the future upbringing of the child. The next object, if an abduction does take place, is to restore the child as soon as possible to the home country so that any dispute can be determined there [In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 generally and at § 8 per Baroness Hale of Richmond; IGR Petitioner [2011] CSOH 208, 20 December 2011, Lord Brodie, at § 21].

Basis of the return order sought
[7] The petitioner presented her petition on 10 May 2012. Parties are agreed that the date of presentation is "the date of commencement of proceedings" for Hague Convention purposes. As stated above the respondent brought the child from California to the Scotland, leaving California on 28 February and arriving in Scotland on 1 March 2011. Parties are agreed that the petitioner arrived to visit the respondent and AKWP in Scotland in mid-May 2011 and returned to the USA on 24 May 2011. The evidence put before me suggests that the date of arrival was 16 May. The evidence confirms the date of departure as 24 May. On that date, the petitioner avers, "the petitioner sought to return to the US with the child as the parties previously agreed she would do." In these proceedings counsel concur in submitting that if there were wrongful retention on 24 May 2011 the peremptory obligation to order return is engaged subject to certain Hague Convention exceptions (none of which in my view applies in this case - see below).

Parental rights and litigation history
[8] The respondent was brought up in Dunoon. He moved to the United States in 1998 with his then fiancée's family. He married his then fiancée in 1999 on either - he is not sure - 16 or 18 June. There is one child of the marriage, a daughter BP, now twelve years old. The marriage broke down, the respondent depones, in 2004. I have no information about a divorce. The child BP lives with her mother in Texas. The respondent has continuing maintenance obligations towards the child BP which it is alleged he has never met. The respondent started a relationship with the petitioner, a lifetime United States resident, in 2005. The child AKWP was born on 3 September 2007. At that time the parties were not married. They married in Las Vegas, Nevada, on 15 March 2010.

[9] The petitioner raised her divorce proceedings in the Superior Court of California, County of San Diego, on 16 December 2011, case no ED86229 WZG. By application in the proceedings date stamped 22 December 2011 the petitioner applied for an order for "temporary physical custody, care and control of" AKWP "subject to the other party's rights of visitation". In terms of an order of the Superior Court of California, dated 10 April 2012, it is declared that:

"... the minor child [AKWP] was born prior to the marriage and there has never been a determination of parentage establishing [the respondent] as the legal father of [AKWP] and therefore, in our matter, [the petitioner] has sole legal and sole physical custody of the minor child by virtue of the fact that paternity has never been established ... [the respondent] has no legal rights in the United States to [AKWP] because [the respondent] has never been adjudged to be the father of [AKWP] and there's no presumption under the law that [the respondent] is the father ..."

The copy order produced to this Court bears to be duly authenticated. Counsel are agreed that the matters stated in the order are sufficiently evidenced in terms of the Hague Convention art. 14 and the Child Abduction and Custody Act 1985 s. 7.

[10] By summons signetted on 9 January 2012 the respondent applied in this Court for a residence order in respect of AKWP and for interdict to stop the petitioner removing AKWP from Scotland. The Court granted interim interdict ex parte on 10 January 2012. Those proceedings have since been sisted (stayed).

[11] In the summons the ground of jurisdiction is stated to be the "habitual residence" of the child in Dunoon. The respondent averred that, to his knowledge: "there are no proceedings, continuing or concluded, in Scotland or elsewhere relating to the parties or concerning the said child." This was on the basis, it is averred, that the petitioner had told him of her intention to seek an order for the return of AKWP but that no proceedings had yet been intimated. In his supplementary affidavit dated 12 June 2012 the respondent depones that the petitioner told him on the telephone on 13 December 2011 about her intention to raise proceedings in California and that he instructed his solicitors on the same day to apply for legal aid and to raise the proceedings in the Court of Session. He further depones: "I subsequently received paperwork from America on 21 January 2012."

[12] The respondent's name is entered on AKWP's birth certificate as father. Counsel for the petitioner concedes that, for the purpose of these first instance proceedings, the respondent has shared parental rights. He thinks this concession is called for by the provision about the rights of unmarried fathers in Scots law, the Children (Scotland) Act 1995 s. 3 as amended by the Family Law (Scotland) Act 2006 s. 23. He also thinks, and properly so, that having made the concession to respondent's counsel before the hearing it would be improper to withdraw it in Court.

[13] I am not entirely convinced - the point has not been argued - that the concession is necessarily correct as a matter of substantive law having regard to the choice of law provisions in section 16 of the 1995 Act and to the terms of the Hague Convention Arts. 3 and 4; nor do I see that the concession is required by the pleadings. By art. 4 the Hague Convention applies to a child who was "habitually resident" in a contracting state before any breach of custody rights. art. 3 of the Hague Convention provides that removal or retention of a child is "wrongful" (a) where the removal or retention is in breach of custody rights under the law of the state in which the child was "habitually resident" before removal or retention [my underlining] and (b) where at the time of removal or retention those rights were actually exercised or would have been exercised but for the removal or retention. The petitioner's pleadings aver that she has custody rights in terms of the law of California and that on 10 April 2012 the Californian court "held that the petitioner has sole right to legal and physical custody of the child". The respondent pleads ignorance of these matters; he does not aver that he has parental rights; he does not state in terms either a "habitual residence" or a "no-wrongful-removal" defence. The Minute of Proceedings of the First Hearing on 18 May 2012 records that respondent's counsel gave notice "that it was likely that he would be adding to his answers a case that the child was habitually resident in Scotland prior to 24 May 2011". That has not been done.

[14] Nonetheless, I shall proceed as I am invited to do, on the basis of shared parental rights. On this basis counsel are agreed that removal or retention other than by virtue of a joint decision is wrongful. Given the young age of the child AKWP, both counsel submit, the Court need not be concerned with his intentions and wishes. Counsel for the respondent does not contest that the petitioner would have exercised rights of custody if she had been able to do so. It is not disputed that up to 28 February 2011 the child was "habitually resident" in the United States. The threshold question is whether the child continued to be "habitually resident" in the United States as at the date, 24 May 2011, when, allegedly, he was wrongfully retained in the United Kingdom.

The applicable law

[15] Counsel are agreed, with slight differences of emphasis, as to the interpretation of the Hague Convention, that is as to the meaning of the Hague Convention as a matter of Scots Law [cf Re P (Abduction: Declaration) [1995] 1 FLR 831 at 838G per Millett LJ]; and they have produced a joint bundle of 27 authorities - 28 including another case report added during the hearing - for which I am grateful. I have looked at one more case, In re P-J (Children) (Abduction: Consent) [2010] 1WLR 1237, and have given counsel an opportunity to address me on that case on 9 July 2012. What follows is, unless otherwise indicated, their agreed statement of the law.

[16] Counsel tell me that the expression "habitually resident" is to be understood according to the ordinary and natural meaning of the words. Whether or not a person is habitually resident in a state is a question of fact to be decided by reference to the circumstances of the case. If a person leaves the state of habitual residence with the settled intention of taking up long-term residence in another state, that person may cease to be habitually resident in the first state in a single day: but habitual residence in the second state cannot be established in a single day because an "appreciable period of time" and a settled intention are necessary to establish habitual residence. However, there is otherwise no minimum period for the acquisition of habitual residence. [In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578-579 per Lord Brandon of Oakwood; Dickson v Dickson 1990 SCLR 692 at 702E-703D per Lord President; Re P (Abduction: Declaration) [1995] 1FLR 832 at 838F-H per Millett LJ; Re B (Minors) (Abduction) (No 2) [1993] 1FLR 993 at 998E-G; Cameron v Cameron 1996 SC 17 at 23H-24D per Lord Justice-Clerk delivering the opinion of the Court; Anton's Private International Law, 3^rd edn (Edinburgh 2011), §§ 7.80-7.97; cf. "ordinarily resident" for the purpose of a local authority further education award, Reg v Barnet LBC, Ex p. Shah [1983] 309 and "habitual residence" for the purpose of a claim for income support, Nessa v Chief Adjudication Officer and Anr [1999] 1 WLR 1937] .

[17] Counsel concur in submitting that the habitual residence of a young child is the residence chosen for him by the custodial parent(s). If a child leaves the state in which he or she is habitually resident with the shared intention on the part of both custodial parents that the child should settle elsewhere, then the child must be taken to have abandoned his habitual residence as soon as he leaves. The questions of the loss of an existing habitual residence and the acquisition of a new one are to be determined upon a consideration of the character, purpose and duration of the arrangements as to the child's residence. A change of residence agreed to by both custodial parents for a limited and temporary purpose does not change the state of habitual residence. Long-established objective facts can establish "habitual residence" notwithstanding a contrary intention on the part of one of the custodial parents [Cameron v Cameron 1996 SC 17 at 23H-24D per Lord Justice-Clerk delivering the opinion of the Court; Moran v Moran 1997 SLT 541 at 543D-L; Findlay v Findlay (No 2) 1995 SLT 492].

[18] (I was referred to an article by Dr Clive which offers valuable insights into these matters [E M Clive, "The Concept of Habitual Residence", 1997 JR 137]. For some non-child law purposes it seems reasonable to envisage the possibility of multiple simultaneous residences. As regards children, my own view is that at any given moment a child has to be habitually resident somewhere for jurisdictional purposes; and that therefore there cannot be relinquishment of one residence without the simultaneous acquisition of another. Otherwise children risk being consigned, unprotected and at their most vulnerable, to a jurisdictional limbo where there is no such thing as wrongful removal in terms of the Hague Convention or the substantially equivalent European Council Regulation (EC) 2201/2003. The intendment of the Hague Convention as set forth in the preamble is: "to protect children internationally from the harmful effects of their wrongful removal or retention ..." If my view is correct the above principles might require modification.)

[19] I discern a possibility of confusion in cases of shared parental rights. art. 13(a) of the Hague Convention provides that, "notwithstanding" the peremptory return provisions of art. 12, the requested state is "not bound to order return if the person... [who] opposes return establishes that ... the person ... having care of the person of the child ... had consented to or subsequently acquiesced in the removal or retention". The consent is to be given by the person "having care of the person of the child", which I think, in context, means the person(s) having the legal right to exercise actual custody and including "in particular, the right to determine the child's place of residence". See art. 5.

[20] The provision fits best where one parent has the legal right of actual custody. In that situation, a consented-to removal may be technically wrongful applying the art. 3 definition, but excusable in terms of art. 13. Where parental rights are fully shared the art. 13(a) exception seems to me to involve circularity: removal or retention which is not governed by a joint decision on residence is prima facie wrongful but may nonetheless be excused if demonstrated by the "abducting" parent to have been agreed or at least not objected to by the "deprived" parent. I understand this to mean in practice, as do both counsel, that, where the terms or effect of a joint decision are disputed, the burden of proving consent or acquiescence is on the "abducting" parent. I think this is the conclusion arrived at in In re P-J, currently the leading English case on consent [KT v JT 2004 SC 323 at 326, §§ 11-14 per Lord President citing C (Abduction: Consent) (Re) [1996] 1 FLR 414; A Petitioner 2012 SLT 370 at § 27 following KT v JT and citing C v C 2003 SLT 793; In re P-J (Children) (Abduction: Consent) [2010] 1WLR 1237; Hague Convention, art. 13(a)].

[21] Proof of consent or acquiescence is on the balance of probabilities. The cogency of the evidence required depends on the degree of improbability that consent has been given. Consent has to be "real, positive and unequivocal." A finding of consent should not be made on equivocal evidence. Consent may be revocable, at least unless and until positively acted on. [KT v JT 2004 SC 323 at 326, §§ 14-15 per Lord President citing K (Abduction: Consent) (Re) [1997] 2 FLR 212 at 217 per Hale J; A petitioner 2012 SLT 370 at § 27; C v C 2003 SLT 793 at §§ 17-20].

[22] Counsel further concur in submitting that the principles which apply to consent and acquiescence are the same, with one qualification, namely that acquiescence is capable of being inferred from unexplained inactivity. The main principle is that consent and acquiescence are to be determined, not objectively, but by reference to the actual subjective intention of the "deprived" parent. The Court is likely to attach more weight to the parent's express words and conduct at the time than to subsequent assertions about state of mind. Where there are contradictions between the affidavits of the respective parties and no other evidence one way or the other, no conclusion ought to be drawn by the Court that the parties shared a particular intention to change the arrangements for the child. This principle was enunciated by the Inner House in D v D where the question was about parties' intentions as to habitual residence: but counsel agree that the principle applies generally subject, I assume, to the considerations of onus and improbability referred to above [In re H (Abduction: Acquiescence) [1998] AC 72 at 87D-89B; 90E-G per Lord Browne-Wilkinson; KT v JT 2004 SC 323 at 326, § 15 per Lord President citing In re H (Abduction: Acquiescence) [1998] AC 72; M v M 2003 SC 252 at §§ 9, 13-15 per Lord Justice-Clerk delivering the Opinion of the Court citing In re H (Abduction: Acquiescence) [1998] AC 72; Soucie v Soucie 1995 SC 134 at 137B-I per Lord Sutherland delivering the Opinion of the Court but cf. C v C 2003 SLT 793 at § 8; D v D 2002 SC 33 at §§ 8, 18 per Lord Coulsfield delivering the Opinion of the Court citing AF (A Minor) (Re) 1 FCR 269.]

The primary issues of fact

[23] As stated above, the threshold question is whether AKWP continued to be "habitually resident" in California at the time of the alleged wrongful retention: if AKWP's "habitual residence" in California did not continue, then, counsel concur in submitting, there was no abduction in terms of the Hague Convention or at least there is no basis for ordering return to California. Assuming "habitual residence" continued in California, counsel for the respondent accepts that it is for the respondent to establish that the petitioner consented to the respondent retaining AKWP in Scotland when, on 24 May 2011, the petitioner left to return to the United States or at least to establish that she subsequently acquiesced in the situation. As I noted counsel's submission, he stated: "I have to say she consented to that or that she acquiesced from 24 May to 2 November 2011." The significance of 2 November 2011 is that it is the date when the petitioner returned to Scotland for the purpose, on her account, of trying for a second time to take the child back to the USA.

[24] Counsel are in agreement that the focus of the investigation in this case should be on the petitioner's intentions. Respondent's counsel accepts that it is inherently improbable that the petitioner, as the mother of a young child and with no adverse parenting history, had the settled intention at any time of giving up her right of actual custody, that is, her right to have the child residing with her subject, in the event of separation, to the respondent's visitation rights. I think this must be correct. The question then is whether she meant to exercise her right in Scotland. The respondent's position as presented by counsel is that when he left California with the child on 28 February the shared understanding was that this was a permanent move and that the petitioner would follow him and the child to Scotland. The affidavits are in conflict as to the parties' intentions for themselves and the child at this point. Counsel for the respondent maintains that there is other evidence that resolves the conflict between the affidavits in favour of the respondent's position on the issues of habitual residence, consent and acquiescence.

Background to the child's move to Scotland

[25] Important background factors are as follows. The parties could not afford to have their own home in California on one salary. Except when she came to Scotland with the respondent for six months in 2006 without a work permit and when she took maternity leave the petitioner has always worked. The respondent has not worked at all since 2009, he says because of a back injury; and on the basis of the evidence offered by the petitioner, which I accept, his employment record before that was patchy. As a result the parties had to live with members of the petitioner's family. Latterly they lived with the petitioner's father in a small apartment shared, at least from time to time, and then continuously from or shortly after 4 February 2011, with the petitioner's mother and her same-sex partner. This is presented as the main issue for the respondent as at 28 February 2011, as I read his pleadings and affidavits. In his answers it is averred: "The parties' living conditions in the USA were intolerable..." He depones in his affidavit of 12 June 2012 that the conditions were "absolutely intolerable".

[26] The advantage of being in Scotland is that the respondent and the child are provided with accommodation in the respondent's mother's house which has four bedrooms and garden ground. AKWP has his own bedroom. The respondent depones that he "fully supports" the child by which he means that that they are both supported on state benefits claimed by him. The child has free medical care and free nursery and school education in Scotland.

[27] The main complaint of the petitioner as at 28 February 2011 was that the respondent did not, from 2007, share the housework or the care of the child and did not seriously attempt to hold down a job. (It may or may not be relevant in the latter context that he had child support obligations in the USA for his daughter BP). An immediate cause of upset was that on 4 February 2011 the petitioner's grandfather died. Then the petitioner's mother and her mother's partner moved to live with the petitioner's father because at that time they had nowhere else to stay.

[28] I am satisfied that the parties' relationship was in difficulty in February 2011. The petitioner was apparently becoming close to another man, someone called T. The marriage was not necessarily at an end by that stage: but the impression I have from all the information put before me is that at least part of what the parties meant to do at the end of February 2011 was to try a period of time apart with a view to either reconciliation or permanent separation, trying "to work out our differences" as the petitioner puts it in her supplementary affidavit of 25 June 2012. It is not clear that the parties knew their own minds. There are indications - I can put it no higher - that the petitioner was interested to see if the respondent could find a job and provide a home. The petitioner's mother depones that she did not like the idea of the petitioner and the respondent splitting up. This is well-evidenced by the fact that she paid for her daughter's airline ticket to Scotland in May 2011 and by an e-mail she sent to the respondent at the time stating, "I am on your side." Notwithstanding that she was on the respondent's side, the ticket she paid for was a return ticket, which must say something about her understanding as to whether the petitioner had decided to stay with the respondent at that time.

[29] The parties did not and do not have the money to travel to and from Scotland at will. The respondent had no money; and the petitioner then earned, she says, about $1,200 dollars a month gross. The wage slips now produced for the 16-week period to 15 June 2012 show an average monthly salary of between $1,000 and $1,200 before tax as a cashier in a grocery store which is part of the Walmart chain. When the respondent and the child travelled to Scotland they did so with one-way tickets paid for, counsel for the respondent tells me, by the petitioner's mother. As stated above, the petitioner's return ticket in May 2011 was also paid for by her mother.

[30] The respondent depones in his affidavit of 12 June 2012:

"[The petitioner] and I had agreed that we would wait for our tax return to pay out in March 2011, and then use the money to fund our move to Dunoon. We needed to be able to pay for [the petitioner's] visa and our aeroplane tickets. [...] [The petitioner] was to remain in the States only to await her inheritance from her grandfather's estate. She was going to use this money to fund her visa and pay for her flights to Scotland."

Which was it? Was the departure delayed to await an inheritance or to await a tax rebate? In her affidavit of 12 June 2012, the respondent's mother states: "[The petitioner] told me that she would join the boys once she had obtained her visa and her inheritance money was released to her": but, counsel for the respondent accepts (on 9 July 2012), there are reasons to think that the evidence offered by this deponent is substantially derivative. Counsel has also clarified in oral submissions that any tax rebate was due to the petitioner. The indications are that the petitioner's mother rather than the petitioner expected an inheritance. It was the petitioner's mother who paid for the tickets; and now (on 9 July 2012), I see, from the latest affidavit by the petitioner's mother dated 25 June 2012: "As far as [the petitioner] waiting here in America for any inheritance from [her grandfather's] estate this is false and untrue." The deponent states that she is the beneficiary.

[31] It is common ground that if the petitioner were to have settled in Scotland she would have required a visa. I have no details about this: I do not know the cost or the length of time for an application to be processed. The respondent attaches importance to the fact that off and on over several years the parties had discussed the possibility of going to stay in Scotland as a family. Respondent's counsel properly invites me to take account of this history and of the unsatisfactory nature of the living arrangements for the parties and their child in February 2011 when it comes to considering the likelihood that there was a joint decision to move permanently to Scotland.

Alleged wrongful retention in Scotland on 24 May 2011

[32] It is convenient to start with the question whether the petitioner consented to AKWP remaining behind in Scotland with the respondent when she returned to the United States after her first visit in May 2011. I believe that I do not need to look beyond the pleadings to decide this issue. The pleadings support a finding that the petitioner did not consent to AKWP remaining in Scotland and I make such a finding in fact. The petitioner avers:

"The petitioner came to Scotland on 16 May 2011. During her visit she attempted to repair the parties' relationship. She was unable to do so. At the conclusion of her visit on 24 May 2011 she sought to return to the US with the child. The respondent hid the child's passport. He refused to allow the petitioner to take the child home with her. Because of her work commitments the petitioner had to return to California without the child."

In these proceedings the respondent pleads:

"Admitted the petitioner attempted to remove the child from the respondent in May 2011 to return to the USA. Admitted the respondent refused to allow the petitioner to take the child [...] Explained that [...] The petitioner arrived in Scotland on or about the 14 May 2011 for a temporary visit. She had no intention of residing permanently in Scotland. She returned to the USA on 24 May 2011."

[33] The petitioner's affidavits are consistent with her pleadings. In her affidavit of 30 April 2012, the petitioner states:

"I went to Scotland on 16 May 2011 and was in Scotland for 8 days to 24 May 2011. I wished to express to my son's father that I would not be residing in Scotland. At that point he told me that he would never come back to the US and he would not be allowing [AKWP]. This was not the agreement I had with him."

The petitioner's supplementary affidavit of 11 June 2012 states:

"The deal was two months and this is why I flew over in May 2011 to get my son. When I got there he refused to let me take him back to the United States and he had hidden his passport. He also said that I was to apply for a visa. Again there were discussions about my applying for a visa if I was to go over and live there but I have never applied for a visa, since I never had any intention of living in Scotland."

[34] The respondent's evidence in these proceedings, on the other hand, is not entirely consistent with his pleadings; and it is also self-contradictory. Before examining this material it is instructive to look at the pleadings and at the evidence offered by the respondent in the residence and interdict action. In his action for residence and interdict the respondent avers: "The parties' relationship was by then in some difficulty." I understand this to mean that the relationship was in difficulty when the petitioner left Scotland on 24 May 2011. Thus the respondent's affidavit of 13 April 2012 in the residence and interdict action states:

"I returned to Scotland with [AKWP] on 1 March 2011. My wife required to apply for a visa to come to Scotland and decided to stay in the United States [...] When she arrived on 14 May 2011 she only stayed for one week and then went back to the United States. Our relationship was certainly in some difficulty and I suspected that she had formed a relationship with another man."

Respondent's counsel submits, quoting from another section, pages 6 and 7, about the arrangements for AKWP in Dunoon, that the affidavit of 13 April 2012 "is entitled to some weight": the affidavit cannot be suspected - for the reason that it was sworn before the return order petition was served - of being tailored to oppose the granting of a return order. If that is so as a generality, then I am bound to believe that the relationship was "certainly in some difficulty" in May 2011. Yet, in his affidavit of 12 June 2012 in the present proceedings the respondent depones on oath: "When she left to return to America we were in a happy relationship ..." In his supplementary affidavit of 18 June 2012 in the present proceedings, the respondent depones that he was "happily married", stating:

"I have already addressed the events during May 2011 and [the petitioner's] contact following her visit to Scotland on 16 May 2011. She was not in Dunoon to 'repair' our relationship. We were happily married and we were still having sex. During her visit we continued to make plans for [the petitioner] to join [AKWP] and me. She returned to San Diego and consented to [AKWP] living in Dunoon. She was very clear that she was returning to San Diego to obtain a visa and she would see [AKWP] and me in a few weeks."

At the risk of labouring the point, this is from the party who avers in his answers to the petition that the petitioner "had no intention of residing permanently in Scotland."

[35] If I were to approach matters the other way round by asking whether there is additional material available to resolve the conflict between the affidavits on one side and on the other, I should say that the pleadings are available for that purpose; and that having regard to the pleadings, the petitioner's account is to be preferred on the issue of consent to the child remaining in Dunoon on 24 May 2012. Either way, the respondent has not discharged the burden of establishing that the petitioner consented.

[36] This is a judgement that I can and do make without addressing the question of the credibility or relative credibility of the parties. The judgement can be made because of the inconsistencies in the respondent's own position. As a rule I should think it wrong, unless the matter were blatant, to make findings of credibility on the basis of affidavit evidence. If I were required to address the issue of credibility on the basis of the written material in this case I should have to question the respondent's truthfulness. In this context I note that the respondent depones categorically in his affidavit dated 12 June 2012: "I deny that I had ever hidden [AKWP's] passport." In the affidavit of the respondent's mother SP dated 13 April 2012 it is stated: "[The respondent] has hidden [AKWP's] passport in case [the petitioner] does try and remove him." It may be of course that the witnesses are talking about different occasions and I should feel uncomfortable about drawing a conclusion without oral testimony [cf. Findlay v Findlay (No 2) 1995 SLT 492 at 494B-D and 496B-D].

[37] The other evidence that counsel for the respondent appeals to for the purpose of having the issue of consent determined in the respondent's favour includes the potentially corroborative affidavit of the respondent's mother SP dated 12 June 2012, paragraph 7 at pages 8 to 10. In relation to the petitioner's departure from Scotland on 24 May 2011, SP depones: "[The petitioner] was happy to leave [the respondent] and [AKWP] in Dunoon on the basis she would come back to stay with them soon." However, some of this evidence is explicitly hearsay; some of it has, from the context, the appearance of hearsay; and much of the rest has a derivative flavour. Further, SP's account in this affidavit is not immediately reconcilable with SP's earlier affidavit, dated 13 April 2012, in the residence and interdict action. Even if first-hand and independent, it is difficult to see how the evidence in the later affidavit can override the respondent's own acceptance that the parties' relationship was "certainly in difficulty"; his acknowledgement that the petitioner "had no intention of residing permanently in Scotland"; and his admission that he refused to allow the petitioner to take the child back to the USA.

[38] Counsel for the respondent also founds on e-mail correspondence between the petitioner and the respondent. This is not of immediate relevance to the issue of consent on 24 May 2011 because the correspondence founded on stops two months earlier. The last complete e-mail in the suite bears the date 27 March 2011; and both the respondent and his mother testify in their affidavits to a falling off in contact between the petitioner and the respondent, to the fact that the petitioner "was failing to communicate as agreed" and to the petitioner becoming "distant" by April 2011. (Indeed it would be open to infer that the "distancing" of the petitioner supports her version of what happened in May 2011). The e-mail correspondence is however relevant to the question whether the parties intended, at the time of the move, that the move to Scotland should be permanent.

[39] Both counsel agree in submitting that whether or not the petitioner consented to the child remaining in Scotland as at May 2011 is material only on the hypothesis that the child continued to be habitually resident in the United States. Otherwise, counsel say, the Hague Convention does not apply. Further, counsel for the respondent submits, the petitioner had already, in February 2011, consented to the child remaining permanently in Scotland when parties made a joint decision to that effect.

Was the child's move to Scotland meant to be permanent?

[40] I hold that if there were a joint decision that the child should leave the United States for good on 28 February 2011 and move permanently to Scotland, then the child's habitual residence in the United States was relinquished on that date. If his habitual residence in the United States were relinquished, then whether or not the petitioner consented to the child remaining in Scotland on 24 May 2011 is immaterial because, ex hypothesi, the child's retention in Scotland by that stage could not, on the submissions made by counsel in this case, found a claim under the Hague Convention. The discussion is focused on the question of permanency because that is how this dispute is presented to me. I do not mean to say that anything short of a permanent move cannot in other circumstances result in a loss of habitual residence. I also hold that, if there were a joint decision in February 2011 that the move was to be permanent, then it was too late for the petitioner to change her mind and withdraw her consent in May 2011 [Dickson v Dickson 1990 SCLR 692 at 703D per Lord President].

[41] In this case the question as to a change in habitual residence and the question as to the scope of the joint decision about the child's move to Scotland are bound up together. Both questions involve the following issue of fact: did the parties' joint decision in February 2011 about the respondent taking the child to Scotland extend to permanent removal? The respondent maintains that his refusal to let the petitioner take the child back to the United States on 24 May 2011 was authorised by the petitioner's agreement, three months before, to a permanent move to Scotland. On that basis respondent's counsel accepts that the onus is on the respondent to establish that what was agreed was a permanent move. It is not suggested that the petitioner agreed to the permanent removal of the child from her actual custody. It follows that the issue is in one sense whether she agreed that she would move permanently to Scotland to exercise her parental rights in Scotland. Her account is that she never intended to do that and "expressed" that she would not do it during her visit to Scotland in May 2011. If the Pursuer's account is correct then on my analysis the question of a change in the child's habitual residence was suspended until May 2011 and ultimately, within the relevant timescale, no change took place.

[42] In her petition the petitioner avers:

"... the petitioner only agreed that the child would reside in Scotland for a period of two months, until May 2011, when either the respondent would return to the USA with the child or the petitioner would come to Scotland, collect the child, and return with him to the USA."

The account given by the petitioner in her first affidavit, sworn on 30 April 2012, is that in February 2011 she and the respondent decided to separate. The petitioner agreed to the respondent taking the child on holiday to Scotland to see his grandmother "on condition that he was returned to me in May 2011 if I decided not to reside in Scotland."

[43] The account given by the petitioner in her second affidavit, sworn 11 June 2012 after sight of "the Defences put in by my husband and his first set of productions", is as follows:

"Prior to February 2011 and probably up to a number of years before our relationship ended there were also discussions between myself and my husband about going to Scotland to live. He was keen on the idea and I never was. This was the same scenario in February 2011 but we had come to realise that the relationship was possibly not going to last and at that point [the respondent] suggested he wanted us all to live in Scotland even if that meant us living separately. I made it clear that I did not want to live in Scotland. It was not something I ever wanted ... [The respondent] had said that he wanted to take my son to Scotland to see his gran and he wanted to take him for two months. I thought this was a reasonable request because my son did not know his Scottish grandmother [...] I thought this would be good for my son to get to know his gran, and it would also give my husband and I some breathing space to work out what to do with our relationship. We agreed that he would take [AKWP] to Scotland and that they would stay at his mother's house for a period of two months and either he would bring him back to the US to me or I would go and get him [...] I agree there were lots of discussions about us living in Scotland but I never agreed to do this. There was talk about the idea of us living over there and even when he was in Scotland there will be e-mail and telephone discussions noted between us discussing that I should come over and live there but I never agreed to do that and I certainly never gave my permission for my husband to keep [AKWP] in Scotland for all this time. The deal was two months [...] there were discussions about my applying for a visa if I was to go over and live there but I have never applied for a visa, since I never had any intention of living in Scotland. There were a lot of debates about living in Scotland, before our relationship, when our relationship ended, and even when [the respondent] was in Scotland but I never agreed to let my son live in Scotland since I could not bear to be parted from him."

My understanding, given the dates, is that this affidavit responds to the affidavits produced in support of the summons for residence and interdict: it is not a response to the affidavits and productions, including e-mails, lodged to support the answers to the Petition.

[44] The affidavit of the petitioner's mother JLM gives the following account of the agreement:

"At this time [the petitioner's] and [the respondent's] relationship was rocky [the petitioner] was getting really tired of always worrying about how the bills were going to get paid and [the respondent] was not helping her out by getting a job. He was wanting to go to Scotland so the baby can spend time with his family there. So [the petitioner] thought she never wanted to keep her son for all his family ... [the respondent] would take [AKWP] to Scotland until May to visit family while she worked. was And [the respondent] was going to see about getting a job and set them up a home there in Scotland then in May [the petitioner] would go to Scotland to bring him home if the relationship was not working ..."

The affidavit is garbled but the sense is reasonably clear.

[45] The petitioner's mother is in a same-sex partnership with JS. JS's affidavit gives the following account of the parties' agreement:

"... [the respondent] could take [AKWP] with him to Scotland to spend some time visiting with his mother. During the time [the petitioner] and [the respondent] were separated, he was supposed to make the effort in Scotland to get a job to show he could provide for his family if they stayed together. [The petitioner] would come to Scotland in May to see if she and [the respondent] could make the relationship work. At that time if she didn't feel the relationship would work in Scotland, then she would come back home to the United States with [AKWP] and then once she and her son were back home they would figure out visitation for [the respondent] to see [AKWP] [...] A couple of days later two tickets were purchased for [the respondent] and [AKWP] to go to Scotland. I transported [the respondent] and [AKWP] to LAX [Los Angeles International Airport], along with [the petitioner] on February 28^th of 2011. [The respondent] sat up front in the passenger seat, while [the petitioner] sat in the back with her son, just spending every moment with him before he had to leave ... Since we had a good 2 hour drive to the airport I decided to take the time talk to [the respondent] about the agreement he made and how was he going to uphold it and what his plans were to get a job. My biggest concern that I expressed to him was ensuring that [AKWP] came back home in May if things didn't work out between him and [the petitioner]. He promised me and assured me that when [the petitioner] came out in May, if she decided she didn't want to be in Scotland that he would stick to what the agreement said and she would bring [AKWP] home with her..."

[46] The petitioner, JLM and JS state, though not in identical terms, that the parties put their agreement in writing. JS depones simply: "They both signed this agreement in front of myself and [the petitioner's] mother." JLM depones that she, JS and the parties: "sat down and wrote a letter stating that in the event that [the petitioner] and [the respondent] break up [the respondent] is to allow the baby to come back home to the US with his mom and they both signed it." She adds that each of the parties had a copy.

[47] The petitioner depones:

"As my husband had previously suggested living in Scotland permanently, which I did not want, I wanted to make it absolutely clear that this visit was not to be for longer than a two month holiday and therefore what I did was I got a bit of paper and I wrote on it that my husband could take him to Scotland for a period of two months only and that either I would go and get him or he would bring him back to me. Both my husband and I signed this but of paper and this was done in front of my mother and father who can verify this. My husband had one copy of the paper and I took one copy for myself and I put the copy in my dresser drawer. On 28 February 2011 my mother's partner drove us all to the airport. When I returned from the airport I found that the copy I had in my dresser drawer was missing. I presumed that [the respondent] had taken it and when I questioned him about it in May 2011 when I was in Scotland he confessed to me that he had taken the paper as it was always his intention not to give [AKWP] back to me and let him stay in the US."

In his affidavit of 18 June 2012 the respondent states that the petitioner is telling "complete lies" about written contracts. The evidence about the missing document is the sort of thing that ideally I should have wished to see tested in cross-examination. Counsel for the respondent does not, however, challenge the truthfulness of this evidence in terms. He concentrates, and I think correctly, on the substance of the agreement; he draws attention to the passages in the affidavits lodged on the respondent's side which contradict the petitioner's version; and he submits that there is material additional to the affidavits which ought to persuade me to prefer the respondent's account.

[48] In his answers to the Petition, the respondent avers:

"Admitted that the respondent left the USA and brought the child to Scotland on or about 1 March 2011. [...] Explained that when the respondent removed the child at the end of February 2011 he intended that the child should leave the USA and live in Scotland permanently. The respondent believed that the petitioner consented to the removal on that basis as hereinafter averred [...] Esto the petitioner consented to the removal and subsequent retention of the child. The respondent took the child to Scotland in February 2011 having agreed with the petitioner that they would reside permanently in Dunoon thereafter. He believed that the petitioner would join him in Dunoon and live there permanently in family."

One thing I have no difficulty in concluding from these averments is that when the respondent left California with the child he personally meant the move to be permanent. His position on what the petitioner intended is, perhaps, rather weaker. He states that he "believed" the petitioner consented to a permanent removal of the child and that he "believed" she would join him in Dunoon and live there permanently in family. In addition he avers that he had agreed with the petitioner that "they" would reside permanently in Dunoon. It is a small point but I think, in context, that the "they" must refer to the respondent and the child.

[49] The respondent's summons for residence and interdict avers categorically that the parties agreed to move to Scotland and that the petitioner agreed to join the respondent and the child in Scotland. The supporting affidavit, dated 13 April 2012, states that the parties "had various discussions about returning to Scotland" and that the parties decided "that we would have a much better quality of life and standard of living if we moved to Scotland". In her affidavit of 13 April 2012, the respondent's mother SP depones: "They both told me that they decided to move to Dunoon during 2010 and I was thrilled." The affidavit continues to the effect that SP was "thrilled when the boys came home": but not long after their arrival she began to suspect "that all was not well".

[50] In his first affidavit in the present proceedings, dated 12 June 2012, the respondent depones: "[The petitioner] and I made a joint decision to leave the States and reside in Dunoon on a permanent basis." He continues:

"[The petitioner] was adamantly in favour of the move [...] We wanted to stay as a family and offer [AKWP] the best start in life. In February 2011 we decided that I would move to Dunoon and take [AKWP] to allow him to settle in. We purchased one way tickets for me and [AKWP] [...] [The petitioner] and I packed up [AKWP's] clothes and a lot of his toys to take to Dunoon. We had planned that she would bring the rest of our belongings with her. It was far too expensive to ship everything over when [AKWP] and I left. [The petitioner] came with us to the airport and was clear in wishing us well and saying she loved us both and would join us as soon as she could. I have no doubt that she was in agreement that [AKWP] and I were leaving the States to settle in Dunoon. We were going to live in Dunoon and she was going to join us. We were setting up a new life. [The petitioner] was in complete agreement with this plan. [The petitioner] was to remain in the States only to await her inheritance from her grandfather's estate. She was going to use this money to fund her visa and pay for her flights to Scotland [...] We did not have a specific time limit on her joining [AKWP] and I. [...] Everyone knew the move to Dunoon was permanent. There was no discussion of our trip being just a holiday."

In his supplementary affidavit, dated 18 June 2012, the respondent depones as follows:

"[...] I wish to add the following comments since reading my wife's amended petition. The petition states that [the petitioner] and I agreed that [AKWP] would only reside with me in Scotland for a period of two months. This is completely untrue. We had made plans to move to Scotland on a permanent basis over a long period of time. We had been discussing our move since we lived with my mother in Scotland during November 2006. We had open and lengthy discussions about what paperwork we would require and our financial situation. We spend a long time planning the move to make sure it was financially viable. We were not discussing written contracts to return [AKWP] to America after two months on the day before we left for Scotland. [The petitioner] is telling complete lies. There was no written agreement. There was no need for one. We were both of the understanding that [AKWP] and I would move to Scotland and [the petitioner] would join us once she received her visa and money from her grandfather's estate. We had never even spoken about only going to Scotland for two months. Her version of events it utter nonsense. Her parents did not witness any agreement being signed [...] [The petitioner] has concocted this ludicrous story for her own means. She has never mentioned an "Agreement" in any of our emails or even in the court action that she raised in America."

[51] In her affidavit of 12 June 2012, the respondent's mother SP depones as follows:

"[The respondent] and [the petitioner] told me over the telephone that they were going to move out to Scotland in March 2010. I cannot pinpoint exact times and dates as these conversations happened on a regular basis. [The petitioner] and [the respondent] decided to get married first and then move the following year. I think March was a month which coincided with receiving money from a tax rebate [...] I remember [the petitioner's] grandfather passed away in around February 2011 [...] [The petitioner] and [the respondent] were still very enthusiastic about the move when they would talk to me on the telephone. They were waiting for their next tax return to become available. They told me they were going to use the money to organise [the petitioner's] visa and flights [...] [The petitioner] and [the respondent] were committed to their plan to move. [The petitioner] was also very anxious to re-locate prior to [AWKP] commencing primary school. She told me on the telephone on a number of occasions that she wanted the least amount of disruption in his life [...] It appeared to me she was the real driving force behind the move to Scotland. I spoke to [the respondent] and [the petitioner] on the telephone in February 2011 and they gave me more details about their plans. They had decided that [the respondent] would bring [AKWP] out to live in Dunoon. They would arrive to stay with me on 1 March 2011. The tickets were expensive but they had purchased one way flights. [The petitioner] told me that she would join the boys once she had obtained her visa and her inheritance money was released to her."

I am also pointed to the affidavit of CM, a friend of the respondent who knows the petitioner, dated 12 June 2012. CM states: "[The petitioner] was definitely the driving force behind the move." This is on the basis of what he recollects the petitioner saying when she discovered she was pregnant during the visit to Dunoon in 2006.

[52] The respondent has produced selected e-mail messages from the respondent's Facebook account. Petitioner's counsel accepts the authenticity of the individual messages. The messages start on 25 February 2011, before the respondent and the child travelled to Scotland. Counsel suggests that the petitioner may have sent messages from her workplace to the respondent at home. The following are the excerpts I have made from the selected messages which bear on the question of the petitioner's intentions [the petitioner is denoted by "P" and the respondent by "R"; original spelling and punctuation retained]:

25.02.2011 P to R "i dont know why i looked for confort in someone else either i don't understand what my problem is i really cant explain it all i can do is try to make things right and i will.im sorry you dont trust me i never meant to hurt you i honestly don't know what i was thinking ...but we will work it out thats why the time will be good.i know you miss your wife i miss myself to and i just want to work on myself so that i cane be the wife you deserve iam so sorry for everything i love you my hubby and i will work it out:)"

25.02.2011 R to P "[...] I'm still very much in love with u but u have to make the effort when u come out to scotland.please baby never let me feel like this again,i can not do this again,take this time away to get the feelings back that u felt on our wedding day and to spend some quality time with ur family,i'm excited about our new start in Scotland but i want u 2 feel the same [...]"

26.02.2011 P to R "[...] when i get to sotland i will do everything in my power to make you see that I do love you very much.i don't want to ever do this again i dont want to lose you at all so this is me making a promise im gonna take my time that i neede to get back to me and then when I get there you will have me all to yourself i love you so much [...]"

28.02.2011 P to R "HEY BABY IM SOOOOO GONNA MISS YOU WHEN YOU LEAVE TOMORROW I OVE YOU AND I KNOW IT WONT BE LONG BEFORE IT HAPENS BUT ITS GONNA BE SO HARD TO SAY GOODBYE I LOVE YOU GUYS MORE THEN ANYTHING AND I CANT WAIT TO BE RUNITED WITH MY FAMILY ... TAKE GOOD CARE OF MY LITTLE ANGEL FOR ME AND YOURSELF IM GONNA GO CRAZY WITHOUT YOU GUYS IF I WRITE ANYMORE IM GONNA START CRYING JUST KNOW I LOVE YOU AND MY BOY VERY MUCH AND WE WILL BE TOGETHER AGAIN SOON ... I LOVE YOU MR [P] ... YOUR LOVING WIFE MRS [P]"

28.02.2011 R to P "Baby its gonna be alright,it will only b a wee while b4 u come to us. I will miss u like crazy aswell,I dont like to b away from u ever. [AKWP] will miss u 2 and i will care of him and u know it.Just enjoy ur own space and time and spend time with ur family and mates, i think it will do u good.Anyway i love you wife and will miss u everyday we r apart-love ur husband [...]"

01.03.2011 P to R "HEY BABY I KNOW YOU WONT GET THIS UNTILL LATER I HOPE YOUR FLIGHT WAS GOOD AND THE WEE MAN WASN'T TO MUCH TROUBLE FOR YOU ALL I DID WAS CRY YESTERDAY ALL DAY I MISS YOU GUYS SO MUCH AND CANT WAIT UNTILL I CAN GET THERE [...]"

02.03.2011 R to P "I love u and miss u so much,please come soon,ur husband needs his wife."

12.03.2011 P to R "I JUST WISH WE COULD BE TOGETHER I HATE BEING WITHOUT YOU IT PISSES ME OFF.I LOVE YOU SO MUCH AND I MISS YOU LIKE CRAZY..."

13.03.2011 R to P "[...] I'm pissed to baby but tomorrow i will call around to find out if u can do the visa from over here and if u can as soon as u have enough money to get ur tix then u need to just come out,then when ur Mum gets her money she can just send it to u or wire it into my bank here [...]"

13.03.2011 P to R "I MISS YOU SO MUCH AND I WANT TO BE WITH YOU AND THE WEE MAN [...] I'M SORRY FOR WHAT HAPPENED I HOPE WE CAN GET OVER IT AND MOVE ON CAUSE WE BELONG TO EACH OTHER AND I DONT WANT TO LOSE YOU EVER!!!!!!!! [...] I WILL NEVER PUT OUR FAMILY IN JEOPARDY AGAIN I PROMISE ...I KNOW ITS HARD FOR YOU TO TRUST IN THAT RIGHT NOW BUT I WILL PROVE IT TO YOU ...AS SOON AS I GET ENOUGH MONEY TO FLY OUT THERE IM ON THAT PLANE YOU BETTER BELIEVE IT BABY [...]"

13.03.2011 P to R " [...] I WANT TO BE UR WIFE FOREVER AND I WANT YOU TO BE MY HUSBAND AND I WANT US TO BE A FAMILY AGAIN [...]"

24.03.2011 R to P "I'm glad you feel that way cause i feel the same.I'm so glad that u r ready 2 put 100% in our relationship cause thats what it needs 2 b [...] Anyway just know that I love u and wish u were here already [...]"

25.03.2011 P to R "[...] i don't know how much more i can take being away from you ... its driving me absolutely insane being apart from you and [AKWP] ... I get worried that [AKWP] won't really remember me and wont want to come to me when i get there and that scares the shit out of me cause i love him so much andit would tear my heart apart if that happened ... please make sure he knows who i am and that i love him so much [...]"

27.03.2011 P to R "[...] i just want to be with you and grow old with you i love you so much and i will keep my promise [...] i love you baby and im thinking of you everday missing you and I cant wait to be with you [...]"

27.03.2011 P to R "[...] i only want to be with you and you are right we are soul mates [...] i wish i could come to you right now and if i could i would [...]

The respondent also founds on an e-mail exchange with the petitioner's mother JLM (denoted by "J"), otherwise "Jomama", on 16 May 2011 as follows:

16.05.2011 R to J "Dear Jomama,

Just wanted to say thank you for supprising [the petitioner] with buying her the ticket,i have missed her so much and I know Jr has aswell,i love her so much and i'm so happy i will be seeing her soon [...]"

16.05.2011 J to R "Your welcome son.I am waiting on my money from my dads world and as soon as that gets in,I can do the Visa thing so she can become resident or whatever so all three of you can be together.Its not about me [respondent] I am on your side.Love mom"

[53] The Court has not been persuaded at the First Hearing that there is "special cause" in terms of RCS 70.6(5)(a) for certain matters to be the subject of oral evidence. At the Second Hearing therefore I have been offered only paper evidence. Deciding a matter of this kind on paper is in itself difficult enough as a technical exercise. It is made more difficult by the fact that the issues raised in the submissions of counsel are not necessarily focused in the pleadings or addressed in the affidavits - the respondent's answers do not state a "habitual residence" defence, for example, though the point was argued without objection. The affidavits do not necessarily link up with the averments in the pleadings or deal with the points raised on the other side. A salient example is the petitioner's supplementary affidavit notarised on 11 June 2012 which does not, and could not be expected to deal with the specific e-mails founded on by the respondent in, and produced with his affidavit sworn on the following day, 12 June 2012. I am told that the content of the affidavits on the petitioner's side has been compiled by the witnesses themselves, which explains why the issues are not methodically and comprehensively addressed. The affidavits offered by the supporting witnesses for the respondent, though apparently professionally prepared, are problematic in another way: they contain pages of apparently derivative testimony, primary and secondary hearsay. The decision I have to make on incomplete and imperfect information is not made easier knowing that the outcome is likely a significant effect on the lives of those involved, it may be for years to come.

[54] Focusing as I must on the subjective intentions of the petitioner, I am satisfied that, if the petitioner had ever agreed to her child going to live permanently in Scotland, she had changed her mind by the time of her visit to Dunoon in May 2011. Going further, I think I should be entitled to conclude that she was unenthusiastic about the idea from the end of March 2011. Did the petitioner change her mind in the space of one month from the end of February to the end of March 2011 or is it the case, as she depones, that her agreement was always time-limited and conditional? Counsel for the petitioner draws my attention to the fact that there is no record of the petitioner herself talking about applying for a visa to reside permanently in the United Kingdom. I accept that she did not in fact apply for a visa; and I also accept, as counsel asks me to, that not applying for a visa is evidence of the absence of a settled intention on her part to move permanently to Scotland. The absence of a settled intention on the petitioner's part to move permanently to Scotland does not exclude the possibility that she consented to her child doing so but it does have a bearing on the probabilities.

[55] I feel entitled to attach some weight to the pleadings tabled on the respondent's behalf. The pleas-in-law raise only the Hague Convention art. 12 (second paragraph) and art. 13 defences, all of which authorise non-return where there has been wrongful removal or retention as defined by art. 3; and as noted above the respondent's averments about the petitioner's plans for herself are stated as a matter of belief rather than categorical fact. Counsel for the respondent, correctly in my view, accepts the inherent improbability that the petitioner meant to waive her right to have the child residing with her. If she did not have a settled intention to move permanently to Scotland it follows that it is improbable, subject to cogent proof to the contrary, that what she intended for the child was an unconditional move to Scotland to stay for an unlimited time.

[56] Parties have left me to make what I can of the whole e-mail evidence. I have come to the view that the e-mail evidence has to be received with caution for the reason that it represents a selection made by the respondent from what may be a much larger archive. I am told the petitioner no longer has access to her own Facebook account. No application has been made for a Court-appointed expert to access the respondent's account. I emphasise that what I have reproduced above are excerpts from the material selected by the respondent. The respondent's whole selection is contained in the document No. 7/9 of Process. There is no detailed evidence as to whether the e-mails immediately succeeded one another as presented or whether there were other communications in between by e-mail, text, telephone or - while the parties were still in California - face to face. For example, as presented, the petitioner's e-mail of 13 March 2011 at 11.04 pm, "[...] I WANT US TO BE A FAMILY AGAIN [...]", is followed by the respondent's e-mail of 24 March at 9.32 pm, "I'm glad you feel that way cause i feel the same." Given the time gap it seems unlikely that the latter was a response to the former: but to what then was it a response?

[57] Even from the respondent's selection it is possible to see that there were or had been difficulties in the relationship, not fully resolved; and that some of what the petitioner and the respondent meant to do during their time apart was to try and understand their feelings towards one another and each other's intentions. I infer from the respondent's e-mail of 25 February, only three days before he left, that he was not entirely convinced of the petitioner's commitment to "our new start" in Scotland. I also infer from the respondent's e-mail of 13 March 2011 that, a fortnight after the respondent and the child had left California, the respondent was well aware that the petitioner had still not made her visa application. In general it might be thought surprising, if the respondent is correct, that there is absolutely no discussion of the practical aspects of what was meant to be, according to him, the end of the parties' life in California and the beginning of permanent residence in Scotland.

[58] Clearly both parties contemplated that the petitioner would travel to Scotland at some stage, for some purpose; and I think it a not unreasonable interpretation, at least in the abstract, that when the petitioner wrote about travelling to Scotland, and when she wrote about wanting "to be your wife for ever", "to be a family again", "to be with you and grow old with you" the two things should be read together to mean that she intended to settle permanently in Scotland with the respondent and their child. However, in their context I do not think the e-mails should be understood in that way.

[59] I respectfully agree with the dictum of Lord Justice Ward in what is now the leading English case on art. 13 consent: "Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life." What are those realities? In the same case Lord Justice Wilson said: "when intimate human relationships break down, our emotions lead us - whether in anger, jealousy, pain or a wish to wound - to say things which we do not mean and/or which are entirely inconsistent even from one hour to the next" [In re P-J (Children) (Abduction: Consent) [2010] 1WLR 1237 at § 48 per Ward LJ; at § 56 per Wilson LJ.] In a more general way, negotiating their own and each other's emotions, as these parties do in their e-mail correspondence, can lead people into saying things that are felt for the moment but not seriously meant. Are e-mails the same as the spoken word? I think so, at least in this context: the Facebook generation does not communicate "discreetly, advisedly and soberly". The respondent depones that "we were not discussing written contracts"; and states that the evidence on the petitioner's side that there was a documented agreement is "lies" and "ludicrous". If the respondent feels hard done by, he should reflect that common prudence might have led him to get his wife's consent in writing, if only for the purpose of satisfying officialdom, before taking their child on what he says was meant to be a one-way, life-changing journey [cf. dictum of Lady Hale in Re C (Abduction: Consent) [1996] 1 FLR 414 cited in In re P-J (Children) (Abduction: Consent) [2010] 1WLR 1237 at § 44 per Ward LJ].

[60] In all the circumstances, having regard to the material put before me for each side at this time, I am not persuaded by the respondent that real, positive and unequivocal consent was given by the petitioner to the permanent or indefinite retention of the parties' child in Scotland. Indeed I am satisfied on the balance of probabilities, insofar as I can be on the paper evidence, that the petitioner's explanation of the situation is the right one. It follows that at the material date, 24 May 2011, the child's habitual residence continued in California and separately that the consent defence fails. On the basis that the habitual residence continued in California I can reject the supplementary submission by counsel for the respondent that, by 24 May 2011, the child had acquired a new habitual residence in Scotland. This does not exclude the possibility that the child has subsequently acquired habitual residence in Scotland.

Was the retention of the child subsequently acquiesced in?

[61] I also have to consider whether, since the date of the wrongful retention, which I find to be 24 May 2011, the petitioner has acquiesced in the "abduction". In terms of the Hague Convention art. 13(a) it is for the respondent to establish acquiescence. Counsel for the respondent submits, and I think correctly, that the relevant time frame is 24 May to 2 November 2011. The petitioner returned to Scotland on 2 November 2011 with the intention of taking the child back with her to California. The petitioner's intention is well-evidenced by her e-mail to her mother dated 12 November 2011, No. 7/14 of Process, a copy of which was inadvertently forwarded to the respondent. (He then sent a copy on to his lawyers on 24 November 2011). I was reminded that the matter is to be determined by reference to the subjective intention of the petitioner; and I was invited to apply the law as stated in In re H (Abduction: Acquiescence) [1998] AC 72, Soucie v Soucie 1995 SC 134 and M v M 2003 SC 252.

[62] I cannot be persuaded that the petitioner acquiesced during the relevant period. I read the material founded on by counsel for the respondent to support the plea of acquiescence as relating mostly to the period up to 24 May 2011 [affidavit of respondent dated 12 June 2012, No. 7/5 of Process, paragraph 7; affidavit of respondent's mother SP dated 12 June 2012, No. 7/6 of Process, paragraphs 7 and 8; affidavit of CM dated 12 June 2012 dated 12 June 2012, paragraph 4; supplementary affidavit of petitioner dated 11 June 2012, No. 6/11 of Process, paragraphs 10 and 11; Facebook e-mails, No. 7/10 of Process]. I have already given my reasons for finding that the position as at 24 May 2011 was not as now contended for by the respondent. The true position on 24 May 2011, as I find it to be, does not readily support an inference of acquiescence in the period that followed. It is not suggested that during the period that followed 24 May 2011 the petitioner indicated by word or deed that she acquiesced [M v M 2003 SC 252 at §16 per Lord Justice-Clerk giving the Opinion of the Court].

[63] Counsel for the respondent tells me that he relies on the petitioner's inactivity. Counsel submits that if, as the petitioner and her witnesses depone, there was a written agreement, then different conduct was to be expected of the petitioner when she supposedly discovered in May 2011 that the respondent had destroyed the document and meant to repudiate its terms [Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 at 119 per Stuart-Smith LJ, cited in Soucie at 137D]. My inclination might have been to think that there is something in this argument. On the other hand counsel agree in telling me that the question I have to address in the present situation involves whether the respondent has established that the petitioner's inaction led him to believe that the petitioner had abandoned her right to insist on summary return in exercise of her parental rights under the Hague Convention; and they tell me that "judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child" [In re H (Abduction: Acquiescence) [1998] AC 72 at 88E-90G per Lord Browne-Wilkinson with whom the other members of the Appellate Committee agreed].

[64] If I had a concern about the petitioner's apparent lack of action including her delay in raising proceedings, that has been resolved by the terms of her further supplementary affidavit dated 25 June 2012, No. 6/22 of Process. I find what is stated there plausible; and that it tends to negative the idea of acquiescence:

"After I returned [to California] in May I still pleaded with [the respondent] about my son to come home. I was trying to do every and anything I could think of so that I could get my baby home without having to involve the court system. I really did not want to have to get any court system involved, I thought we could come to some sort of agreement between the two of us. When I started realizing that coming to an amicable agreement between [the respondent] and myself was not going to be possible, I flew out to Scotland again in November to make a last attempt to come to an agreement without involving court."

These matters are not really contradicted by the evidence offered on the respondent's side. The supplementary affidavit of 25 June 2012 also states that the petitioner was unaware that she had sole parental rights in Californian law until the declaration of 10 April 2012. Again this seems plausible. In that situation she was not in a position to acquiesce effectively in the abandonment of those sole rights [Soucie v Soucie 1995 SC 134 at 137C-D per Lord Sutherland delivering the Opinion of the Court]. It is probably also fair to bear in mind that the Hague Convention peremptory-return window endures for twelve months and that the claimed inactivity of the petitioner lasted for less than half of that period and was bracketed, as I find, by her attempts to recover the child in May and November 2011.

Is the child too well settled in his new environment to be returned?

[65] Counsel for the respondent presents another supplementary submission to the effect that, if it were the case that the respondent removed the child to Scotland on 28 February 2011, with the intention of retaining the child in Scotland without consent, then that date is the date when wrongful removal occurred and the starting date for the twelve-month Hague Convention peremptory return period in terms of art. 12. I reject this submission. A camouflaged "abduction" becomes wrongful in terms of the Hague Convention, in my opinion, when the true purpose declares itself. In this case that happened on 24 May 2011 and the present proceedings were commenced on 10 May 2012 within the peremptory return period.

[66] If I am wrong about that, and if it be the case that the proceedings were commenced more than twelve months after the "abduction" then I should have to consider the case for non-return on the ground that "it is demonstrated that the child is now settled in its new environment" in terms of art. 12 of the Hague Convention, second paragraph. The respondent has brought forward evidence that the child is settled in the sense that he has now been living in a secure and comfortable home at his grandmother's address for sixteen months, that he has been registered with a medical practitioner, that he has been attending nursery school for fourteen months and has had a good report, that he is involved in extra-curricular activities, that he has friends of his own age and a network of close relationships on his father's side of the family in Scotland and so on. I have been addressed by counsel on the basis that I should take into account facts both during the running of the twelve-month period and also since the end of the twelve month period and I think this is correct.

[67] What is missing is any information about how the child functions emotionally without his mother. I also note that AKWP has just left nursery school and will start at a new, primary school in the autumn so that his nursery school placement is perhaps not such an important factor. The period beyond twelve months is relatively short, being 10 weeks counting from the first anniversary of the hypothetical removal, 28 February 2012, to the date of commencement of proceedings, 10 May 2012, which I take to be the relevant date for determining the issue in the ordinary case. On balance I take the view that the respondent has not made out the case for non-removal on the ground that settlement is so well established that it overrides the otherwise clear duty of the Court to order return [Perrin v Perrin 1994 SC 45; Soucie v Soucie 1995 SC 134; IGR Petitioner [2011] CSOH 208, 20 December 2011, Lord Brodie]. There was some discussion of the question whether, if I were to find the child settled, I should nonetheless exercise my discretion to order the child's return [In re M (Abduction: Rights of Custody [2008] 1 AC 1288 especially at § 2 per Lord Hope of Craighead, at §§ 42-48 per Baroness Hale of Richmond]. The matter has now become highly academic and I shall not express a view.

Would return involve grave risk to, or an intolerable situation for the child?
[68] The respondent also pleads the exception in terms of the Hague Convention art. 13(b). Article 13(b) provides that the relevant authority is not bound to make a return order where "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"; and counsel submits that this Court should not order the return of AKWP in this case because there is the grave risk etc. The answers to the petition contain the following averments in support of the exception:

"The petitioner is believed to have been the victim of violent abuse at the hands of her new partner. The petitioner drinks alcohol to excess. The petitioner is addicted to the drug 'Crystal Meth'. This drug is highly debilitating and when using it the petitioner would be incapable of caring for the child. When withdrawing from using the drug the petitioner is ill and incapable of caring for the child. The petitioner associates with drug users. The petitioner's mother has been in prison. She is a drug user and associates with drug users. If the child is returned there is a grave risk that he will come into contact with these associates of his mother."

"Crystal Meth" is Methamphetamine, which has been classified as a Class A controlled drug in the United Kingdom since 2007. I make the assumption that it is also an illegal substance in California.

[69] Counsel ask me to accept that the law on art. 13(b) "grave risk" is to be found in C v C (Abduction: Rights of Custody Abroad) [1989] 1 WLR 654; Friedrich v Friedrich 78 F 3d (6^th Cir 1996), 1996 Fed App 0085 (6^th Cir); Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; A Petitioner 2012 SLT 370. The law is clear to the effect that it is for the party opposing return to establish the art. 13(b) exception which means, in this case, that the respondent has to satisfy me as to the matters averred. I find that I cannot be so satisfied.

[70] A useful starting point is to consider whether I should hypothesise that the child, if at risk, would be unprotected in California [cf. Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 at § 36 per Baroness Hale]. The answer is "no" because, counsel tell me, I should assume that child protection measures at least as good as those in the United Kingdom are available in California. Insofar as the matter may be one for the civil courts, it is already under the view of the Superior Court of California, County of San Diego, Judge William C Gentry, Jr.

[71] As it happens, the excerpt of the Californian Family Code lodged by the petitioner shows, at section 3011, that "In making a determination of the best interest of the child in a proceeding described in section 3021, the court shall ... consider ... (d) the habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent." I understand dissolution of marriage such as is applied for in California by the petitioner to be "a proceeding described in section 3021". As I said at the beginning, this Court will ensure, subject to any observations by the parties, that Judge William C Gentry Jr has copies of the papers in the proceedings before this Court so that he is in a position to address the allegations made by the respondent. The assumption I make is that, if there is a risk to the child, then, unless it is extreme, it is something that can be contained without becoming "grave" or "intolerable" until the issue of parental rights is determined [Friedrich v Friedrich 78 F 3d (6^th Cir 1996), 1996 Fed App 0085 (6^th Cir); C v C (Abduction: Rights of Custody Abroad) [1989] 1 WLR 654].

[72] The decision in Re E tells us that it is "intolerable" for a child to be exposed to the harmful effects of seeing the abuse of a parent [Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 at § 34 per Baroness Hale]. However, in the present case, counsel for the respondent has not directed me to any evidence to support the averment that the petitioner has been, or is abused by her new partner. Her new partner is PR, someone she has known since childhood. The petitioner states that they were best friends in middle school.

[73] What the respondent does say about PR is that he is "a known drug user", "a junkie". He makes these allegations on the basis of what he now claims was said to him by the petitioner's mother in a telephone call on 13 November 2011, referred to in his affidavit of 12 June 2012. He presumes that the petitioner's "descent into crystal meth is strongly linked to her relationship with [PR]". The petitioner depones in her affidavit of 11 June 2012 that she heard the whole conversation and "not one part of it was about my partner". Assuming she is talking about the same, telephone, conversation between her mother and the respondent, it would have been helpful to know how she heard it. The petitioner's mother, in her affidavit of 11 June 2012, depones:

"As far as [the petitioner's] new boyfriend PR is concerned, [the respondent] has never met him and has no factual knowledge of his life at all. So for him to say he's abusive of my daughter is a lie. My daughter is not nor has never been in an abusive relationship. So far as [the respondent's] allegation that I told him that PR is a junkie is concerned, I have never done that. No such conversation ever happened [...] As a mother I did not like the fact that [the petitioner] and [the respondent] were splitting up. However I know PR and have known him for many years and he is a good man. I have never even spoken to the respondent about PR ever."

The allegations addressed by the petitioner and her mother are, I infer, those made in the summons for a residence order and interdict and in the answers to the present Petition, not those made in the respondent's affidavit of 12 June 2012, which gives specifics of the alleged conversation.

[74] In other words the denial does not fully meet the allegation. However, the substance is addressed; and there seems to have been only one conversation between the petitioner's mother and the respondent during the relevant period. It was a telephone conversation on 13 November 2011. There is a degree of reassurance in the evidence offered by the petitioner that PR (27) currently has a job in a barbecue restaurant, is a "certified medical assistant" and "is looking to go back to school to get his registered nursing degree and is waiting till enrolment in August of this year". He is a divorcee with an 8-year old daughter who visits every weekend. I accept the submission of counsel for the petitioner that in the absence of something additional, I am not in a position to find the averment that PR is "a junkie" made out.

[75] As to the evidence of the petitioner's alleged drug addiction, in his affidavit of 12 June 2012, the respondent states:

"I confronted [the petitioner] about the email [see above] on 12 November 2011 and she confessed everything to me. She told me about her drug addiction."

Going back to his affidavit of 13 April 2012 in the action for residence and interdict, in that context the respondent depones:

"On the 2^nd November 2011 [the petitioner] arrived unannounced in Scotland [...] Her behaviour whilst she was here was extremely erratic. She went out regularly and drank heavily. She became very aggressive and argumentative when she was drunk. In particular on the 4^th November 2011 she told one of my friends that she was addicted to the drug crystal meth and that she had withdrawal symptoms."

It is a matter for comment that the respondent's first affidavit of 13 April 2012 does not mention the subsequently claimed confession to the respondent himself.

[76] It is also a matter for comment that on 13 April 2012 the respondent referred to an admission to "one of my friends" on 4 November 2011 whereas in his affidavit sworn on 12 June 2012 he states that:

"[...] on 4 November 2011 she told mutual friends that she was addicted to the drug crystal meth and that she had withdrawal symptoms. Their names are [CM], [GM] and [NM]. They have each prepared a sworn affidavit confirming their interaction with [the petitioner] and specifically her confession about drug addiction."

In her affidavit of 12 June 2012 the respondent's mother testifies that the respondent told her that the petitioner confessed her addiction to his "friends", plural, on 4 November 2011.

[77] I deduce that the "one of my friends" referred to on 13 April was CM for the reason that the affidavit of CM, No. 7/7 of Process, was the first one to be notarised and lodged and because CM's account is about an admission made to him when he and the petitioner were alone or at least not in the immediate company of others. CM's affidavit of 12 June 2012 refers to an incident when the petitioner became falling-down drunk and confessed her addiction to him, on his own apparently, in a pub some time after 11.15 pm. Looking at all the affidavits, this incident could well be dated to 4 November, two days after the respondent's birthday and a day or two after the petitioner arrived back in Dunoon, being the first occasion when the petitioner allegedly became drunk and admittedly had an argument with the respondent.

[78] In her affidavit of 19 June 2012, No. 7/24 of Process, CM's sister-in-law, NM, depones:

"In or around 4^th November 2011, [the petitioner] told me and my husband that she had become addicted to the drug 'crystal meth'. She had also confessed this to my brother-in-law."

NM provides no context for this confession. Her husband GM, brother of CM, in his affidavit dated 19 June 2012, No. 7/23 of Process, states:

"[The petitioner] drank far too much and became obnoxious. She appeared at my house one night with a bottle of wine. She had already been drinking and sat down with my wife. I was in the room at the time. [The petitioner] drank more and became increasingly drunk. I heard her tell my wife about her addiction to a drug called crystal meth. She was apparently suffering withdrawal symptoms. I could not listen to the conversation any longer and left."

I am sceptical of evidence based on conversations "overheard", of which there are examples on both sides in this case.

[79] Leaving that matter aside, there remains a question-mark over the "confession" to "one of my friends" and to "mutual friends", three in number, averred to have been made on 4 November 2011, though on the evidence apparently made on different occasions. Because I am not in a position to make a judgement on credibility, reliability becomes a key issue. Counsel for the respondent accepts that the fact that three witnesses - four witnesses if the respondent is included - make the same allegation is not necessarily determinative since the cogency of the evidence is more important than the head-count; and he accepts that, if the affidavit evidence on each side is in conflict, something additional is needed before a finding can be made [D v D 2002 SC 33 at §§ 8, 18 per Lord Coulsfield delivering the Opinion of the Court citing AF (A Minor) (Re) 1 FCR 269].

[80] The affidavits of GM and NM dated 19 June 2012 were tendered at the bar on the third day of the Second Hearing, 21 June 2012. I refused to receive them at that time because the petitioner had not seen them and, since I got the impression that they made highly specific allegations of a confession to drug addiction, I decided that the petitioner ought to have an opportunity to answer. At the hearing By Order on 9 July the application was renewed and I granted it unopposed. I also granted a counterpart motion on behalf of the petitioner to receive supplementary affidavits in answer, again unopposed.

[81] The second supplementary affidavit of the petitioner dated 25 June 2012 bears to refute the specific allegations made by GM and NM in some detail. The petitioner's first supplementary affidavit dated 11 June 2012 answers the inspecific allegations made in the residence and interdict action and in the respondent's answers in the current proceedings. On 20 June my attention was drawn by counsel for the respondent to CM's affidavit: but something I did not then appreciate is that the petitioner at that stage had not had an opportunity to answer the allegations made in the first set of affidavits, dated 12 June 2012, lodged for the respondent in the present proceedings. These include the affidavit of CM. What I have before me at this time therefore is a general denial by the petitioner of any involvement with drugs and specific denials that she has ever been addicted to crystal meth or made a confession to GM and NM. No argument is presented by counsel for the respondent that the evidence offered on these matters by the petitioner and her mother should be rejected or is of questionable weight because, for example, of internal inconsistencies; and on the petitioner's side counsel submits that there is something additional that supports the petitioner's version, namely the fact that she is in full-time employment. There is also her uncontested evidence that recruitment drug tests are mandatory with her employer and that she passed a drug test when she took up her present job in February 2012.

[82] The respondent's affidavit of 13 April 2012 cites three occasions when the petitioner became, he says, drunk during her second visit to Scotland in 2011, namely 4 November, 10 November and 25 November 2011. The petitioner's first supplementary affidavit dated 11 June 2012 contains a detailed and to my mind plausible account of her emotional state and the stressful situation she was in during that visit. She describes three occasions when she consumed too much alcohol including one occasion when she became drunk. There is no evidence that the petitioner abused alcohol before 4 November 2011. The last occasion on which she is alleged to have abused alcohol is 25 November 2011. The impression given by the affidavits lodged on the respondent's side is that the petitioner's emotional state settled after 25 November 2011.

[83] The allegation made by the respondent in his affidavit of 12 June 2012 against the petitioner's mother is as follows:

"It was very difficult living in [the petitioner's] mother's house. It was completely intolerable [...] It was a small two bedroom apartment. We shared it with [the petitioner's] father, mother and her mother's lesbian partner. [The petitioner's] mother met this woman after she was released from prison for grand larceny [...] It was very crowded and unorthodox. Her parents drank heavily. Her mother and her mother's partner would regularly smoke marijuana in the house."

In oral submissions I think that counsel for the respondent stated that the conviction was for larceny, not grand larceny. He submitted that in the absence of a denial in the two affidavits sworn by the petitioner's mother I should take it that the allegation is true, which seems reasonable, although I have no details. As far as the averments about drug use by the petitioner's mother and about her associations with drug users are concerned, the only evidence offered is about marijuana and about the smoking of marijuana by the petitioner's mother and her partner.

[84] The petitioner's mother is of course the child's maternal grandmother. Clearly there is a likelihood that the child will come into contact with his grandmother and her partner if the child is returned to California. To characterise this likelihood as a "grave risk", as the respondent's averments do, is not, to my mind, a sensible way of expressing matters. The respondent was apparently prepared to countenance this "grave risk" in 2008 when according to his evidence he, the petitioner and AKWP returned to live with the petitioner's mother. Counsel for the respondent disavows what I took to be the suggestion in the pleadings that the grandmother's lesbian relationship is in itself a source of risk. I note also that the respondent in December 2011 was willing, on the assumption that he was to have custody of the child, to offer visitation rights in California to the petitioner during the child's school summer holidays. There is no criticism of the petitioner's parenting before 1 March 2011 or of her interactions with her son during her two visits to Scotland in 2011.

[85] In any event the evidence offered by the petitioner is that she and her new partner have entered into a lease for their own apartment. The child, if returned will reside with them there and not, on this evidence, with his maternal grandmother. The petitioner's proposed child care arrangements do not involve the petitioner's mother. The arrangements now proposed are not criticised by respondent's counsel. The arrangements include the child's enrolment at the school where the petitioner's brother works as an educational technician.

[86] Risk is a function of both the chance of an occurrence and of the seriousness of the consequences in the event of occurrence. The assessment of risk in terms of art. 13(b) is a precautionary exercise. It must take account of possibilities as well as probabilities. In this case it must take account of the possibility that the abuse, drug-taking, and other matters alleged, though not established as fact on the balance of probabilities, may nonetheless exist. Approaching matters in this way, I find that the respondent has failed to establish with sufficiently cogent evidence in terms of the Hague Convention art. 13(b) that the child would be subject to grave risk or would otherwise be placed in an intolerable situation were he to be returned to California pending determination of parental rights.

Conclusion and further procedure

[87] Accordingly in the whole matter my conclusion is that the respondent's pleas must be repelled and that an order for return of the child within seven days has to be granted in terms of the prayer of the petition. In making this order I wish to compliment counsel on their professional and sensitive presentation of the case on each side; and I wish also to emphasise for the benefit of parties that the decision has been made within the framework of the international convention that governs these matters. Nothing in this judgement should be taken to disrespect the obvious concerns of both parents and of the grandparents on each side for the welfare of the child.

[88] Respondent's counsel has given undertakings on behalf of the respondent that the interim interdict in the action for residence and interdict will be recalled on the motion of the respondent to allow the child to be removed from Scotland by the petitioner. An undertaking has also been given that the child's passport will be handed over with the child. These undertakings will be superseded if an appeal by way of reclaiming motion is marked before the child is handed over. A further hearing By Order has been fixed for 19 July at 10.00 am to allow the Court to be informed should difficulties have arisen. At that hearing parties should state any observations they may have about copies of the papers in this case being sent to the assigned judge for Case No. ED86229 WZG, namely Judge William C Gentry Jr, Department 5, El Cajon Division, Superior Court of California, County of San Diego, 250 East Main Street, El Cajon, CA 92020, United States of America.