Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 95

P304/14

Lady Paton

Lord Drummond Young

Lord Malcolm

OPINION THE COURT

delivered by LORD MALCOLM

in the petition

of

AR

Petitioner;

for an order under the Child Abduction and Custody Act 1985

Act:  Wild;  MHD Law LLP

Alt:  Innes;  Balfour + Manson LLP

14 November 2014

[1]        On 17 June 2014 the Lord Ordinary ordered the return of two female children (aged three years and 11 months respectively) to France.  They had been living in Scotland with their mother (the respondent) since July 2013.  A petition to the court has been brought by their father (the petitioner) under the Child Abduction and Custody Act 1985.  First orders were pronounced in March 2014.  This court heard an appeal against the decision.  Since it was made, the children have continued to live with their mother in Scotland.  At the outset it is appropriate to narrate the background circumstances.  While certain matters are in dispute between the parties, the following is uncontroversial. 

The background circumstances
[2]        The petitioner is a French national who is resident in France.  Under French law he has custody rights in respect of his children.  He owns and runs a small business which is based in France. The respondent is a citizen of Canada whose parents now live in Scotland.  She is employed by a Canadian company and works remotely from her home.  From about January 2010 the parties lived together in France where the children were born.  In the lead up to the birth of the younger child, they agreed that the respondent would spend her maternity leave of about one year in Scotland with the children.  Preparatory steps for this were taken in the first half of 2013. 

[3]        After a period living with her parents, the respondent and the children moved into nearby rented accommodation.  The older child was enrolled in nursery for the year.  The petitioner paid occasional visits to Scotland.  The whole family had a week’s holiday in France in September, and spent a further two weeks in France in October.  Towards the end of that month the former family home in France was sold.  In the course of October and early November the respondent learned certain things about the petitioner, including the fact that he was in a relationship with another woman.  By 9 November the parties’ relationship was over.  Later that month the respondent raised proceedings in Scotland seeking, amongst other things, a residence order in respect of the children.  Later in the year the petitioner made a complaint to the public prosecutor in France about the retention of the children in Scotland.  He raised civil proceedings in France seeking their return to that country.

[4]        In the course of the present petition proceedings, in which reliance is placed upon the 1985 Act and on the Hague Convention on the Civil Aspects of International Child Abduction, a large amount of material was ingathered by both parties.  Numerous affidavits and productions were lodged on each side.  The Lord Ordinary was addressed on this material by counsel for both parties in the course of a hearing lasting three days.  There was no oral evidence.  His order that the children be returned to France was delivered in court a few days after the completion of that hearing. 

The issues
[5]        Before the Lord Ordinary, and also this court, issue was joined on two key questions.  First, where were the children habitually resident as at 20 November 2013, which was the date of service of the Scottish proceedings upon the petitioner?  Given the terms of article 3 of the Convention, if by then the children were habitually resident in Scotland, it was agreed that the petition would have to be refused.  However, if their habitual residence remained in France, the second question is whether the petitioner had consented to their retention in Scotland in terms of article 13 of the Convention.  If the answer is yes, the court has a discretion as to whether the children should or should not be returned to France. 

[6]        The Lord Ordinary held that the children’s habitual residence remained in France, and that there had been no consent by the petitioner to their retention in Scotland.  It followed that he required to order their return to France.  The purpose of such a return is to allow the courts of France, rather than Scotland, to determine the arrangements for the long term care of the children.

The children’s habitual residence
[7]        On behalf of the respondent Ms Innes submitted that the Lord Ordinary made a fundamental error in law in his approach to the question of the children’s habitual residence.  As a result the issue is open to this court’s decision.  Counsel observed (in our view correctly) that the Lord Ordinary’s decision that the habitual residence of the children remained in France turned on the absence of proof of a joint decision by their parents to uproot the family from France and relocate on a permanent basis to Scotland.  Counsel noted that it was never the respondent’s position that there had been such a joint decision.  Rather the parents agreed that the respondent and the children would live in Scotland for the duration of her maternity leave, which was to last one year, and then there would be a decision as to the longer term future.  According to Ms Innes, the search for a joint decision to settle on a permanent basis amounted to a material misdirection on the part of the Lord Ordinary.  Such a decision was not a necessary element for a change in the children’s habitual residence.  Counsel submitted that the Lord Ordinary was deflected from a proper consideration of the relevant factors in favour of the respondent’s submission. 

[8]        Looking at matters broadly, it occurs to us that, in a case such as the present, there is a risk of conflating the two matters at issue.  The question of consent to removal or retention turns on the subjective intention of the petitioning party;  typically, was there agreement to the children living in a certain country on a permanent, or at least an indefinite basis?  Given that this issue only arises if it has been determined that the children are not habitually resident in that country, it would be surprising if the place of their habitual residence could also be decided by reference to the same subjective intention of the petitioning party.  In essence, this appeal is based on the proposition that the Lord Ordinary fell into this trap.  In support of this, reference can be made to his comment, when discussing the issue of consent, to the effect that he had already resolved the point when determining the children’s habitual residence. 

[9]        In defence of the Lord Ordinary, there are judicial statements in earlier decisions which, in various contexts, place emphasis upon parental intention when identifying a child’s habitual residence.  The decision of the United States Court of Appeals for the Ninth Circuit in Mozes v Mozes, (2001) 239 F 3d 1067 , is a good example.  Having criticised the district court for giving “insufficient weight” to the importance of shared parental intent, the case was remitted to the first instance court to determine “whether the United States had supplanted Israel as the locus of the children’s family and social development.”  The decision was preceded by an impressive discussion of the case law and academic writing spanning several countries on the subject of a person’s habitual residence for the purposes of the Hague Convention.  This included reference to an article entitled “The Concept of Habitual Residence” by Dr EM Clive in 1997 Juridical Review at 137.  The author observed that a person’s “residence” is the not the same as physical presence.  It denotes where a person lives, in the sense of his abode or dwelling.  The associated word “habitual” confirms that the residence need not be continuous.  An occasional or short term residence, for example in a holiday cottage on the other side of a border, has no effect.  “Similar functions could be performed by words like ‘ordinary’ or ‘normal’ or ‘usual’.” 

Recent guidance from the UK Supreme Court on habitual residence
[10]      Dr Clive noted that the House of Lords had stressed that habitual residence is “a simple concept” which should be applied “by concentrating on the ordinary and natural meaning of the two words” and on the facts of the particular case.  He contended that the two words “are quite capable of doing all the work which is required of them without the addition of spurious legal propositions.”  While this comment has attracted some criticism (see Mozes), it is in line with the general direction of much of the recent authoritative judicial consideration of the concept of habitual residence.  In A v A [2013] UKSC 60, [2014] AC 1, the UK Supreme Court relied upon recent case law of the Court of Justice of the European Union.  Baroness Hale of Richmond stressed that a person’s habitual residence is a question of pure fact.  Courts should be resistant to temptations to legalise the concept.  She criticised as a “legal construct” the “rule” that one parent cannot change a child’s habitual residence unilaterally (paragraphs 39-40), commenting that there is not a hint of this in the European jurisprudence.  The Court of Justice decisions focused on whether the residence of a child in a member state reflected “some degree of integration in a social and family environment in the country concerned”.  An infant shares the social and family environment of the person or people upon whom he or she is dependent.  Thus, if looked after by the mother, “it is necessary to assess the mother’s integration in her social and family environment”.  Baroness Hale quoted the operative part of the judgment in Mercredi v Chaffe [2012] Fam 22:

“The concept of ‘habitual residence’...must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment.  To that end, where the situation concerned is that of an infant who has been staying with her mother for only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother’s move to that state and second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that member state” (paragraph 50).

Baroness Hale dismissed any notion, which might otherwise arise from the English translation of Mercredi, that for residence to be habitual there is a requirement of permanence.  The French word used was “stabilité”.  Concluding that the Court of Justice’s approach should be adopted and applied, her Ladyship referred to an essentially factual and individual inquiry which should focus on the social and family environment of the person upon whom the child is dependent.

[11]      Lord Hughes noted that the most troublesome cases are those associated with moves from one country to another which one side contends to be temporary and the other to be sufficiently settled.  As to the so‑called “rule” that where two parents have parental responsibility for a child, one of them cannot by unilateral action alter the habitual residence of the child, his Lordship observed that, while generally this will be true in cases of wrongful removal, different considerations might arise in respect of wrongful retention.  For example, it could be relevant if steps taken regarding accommodation, schooling, or nursery, etc, were agreed by both carers.  One of the great values of habitual residence as a base for jurisdiction is proximity, in the sense of the practical connection between the child and the country concerned.  Parental intentions are normally a relevant factor, especially in cases where the question is whether there is sufficient endurance to amount to habitual residence.  The duration of the stay is relevant, but not determinative.  His Lordship observed that, generally speaking, an infant will share the habitual residence of the parent or parents with whom he or she lives. 

[12]      Baroness Hale returned to the subject in the case of In re L (A Child) [2013] UKSC 75, [2013] 3 WLR 1597.  Again the Court of Justice’s approach was approved.  Reference was made to the following passage in the judgment in Mozes:

“Even when there is no settled intent on the part of the parents to abandon the child’s prior habitual residence, courts should find a change in habitual residence if ‘the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place’ (referring to the Scottish case of Zenel v Haddow 1993 SLT 975).”

The reasons for a child leaving one country and going to stay in another would have to be factored in along with all the other relevant considerations “in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence” (paragraph 23).  Baroness Hale reaffirmed that there is no rule that a child’s habitual residence must reflect a shared parental intent – albeit if a child’s residence is precarious, that may prevent acquisition of “the necessary quality of stability” (paragraph 26). 

Discussion
[13]      We recognise that the Lord Ordinary delivered his opinion with admirable dispatch, and that this court has taken a little longer to reflect on the whole matter. However we have concluded that this review of recent guidance from the UK Supreme Court demonstrates that the Lord Ordinary fell into error in identifying a shared parental intention to move permanently to Scotland as an essential element in any alteration in the children’s habitual residence from France to Scotland.  He may have been led into this by the importance of the point to the related issue of consent.  In any event, it deflected his attention from the factors relied upon by the respondent in support of the contention that, as at 20 November 2013, the children’s habitual residence was in Scotland.  It follows, especially in a case which has been before both courts on paper only, that the matter can be considered afresh on appeal. 

[14]      If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland.  The real issue is whether there was a need for a longer period in Scotland before it could be held that there had been a change in their habitual residence.  For our part, in the whole circumstances we would view four months as sufficient.  For the petitioner Ms Wild submitted that, had the relationship broken down later in the period of the maternity leave, the respondent’s position would have been stronger.  We question this approach.  Where the joint intention is that the children will live in Scotland for at least a year, we would not place decisive importance upon exactly when in the course of that period the question requires to be asked.  There is no logic in drawing a distinction between, say, two months and ten months for this purpose.  Nothing of materiality will have changed in the eight months interim period.  If the children were habitually resident in Scotland after ten months, they were habitually resident in Scotland after two months.  If at the outset the stay in Scotland was precarious in the sense mentioned in some of the cases, or was without the consent of the other carer, different considerations might arise, but that is not this case. 

Scottish authority
[15]      Both counsel made reference to Scottish authority, and at this stage it is convenient to address some of it.  In Cameron v Cameron, 1996 SC 17, separating parents entered into a minute of agreement in terms of which their children were to live with their father in France, with certain rights of access exercisable by their mother.  If the children became unhappy, they were to be returned to their mother in Scotland;  and the agreement was to be reviewed after six months.  The children lived in France for about three months.  At the end of a period of residential access, their mother kept them in Scotland.  The father petitioned for their return to France.  This was refused by the Lord Ordinary on the basis that the arrangement was tentative or experimental, and that, in any event, a period of three months was insufficient for the children to acquire a habitual residence in France.  This decision was overturned on appeal.  Before the Second Division it was submitted that for habitual residence in a particular country all that is necessary “is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”  A person’s habitual residence was a question of fact to be determined by reference to all the circumstances of any particular case, and to the ordinary and natural meaning of the phrase.  It was submitted that the Lord Ordinary had erred in concluding that three months was an insufficient period of time in which to acquire a habitual residence in France. 

[16]      The Second Division concluded that there was nothing tentative or experimental about the parties’ agreement.  Despite the review period and the other caveats, the parents agreed that the children would move to France with the petitioner, and they might well have stayed there indefinitely.  The court also considered that by 12 April 1995 the children were habitually resident in France.  Their parents had agreed that they should live in France.  They had taken up residence with their father and had attended school for the whole of a term.  It was stated that there is no minimum period required for acquisition of a habitual residence.  Case law was noted in which three months and two months had been held sufficient.  Importantly for present purposes, Lord Justice‑Clerk Ross, when delivering the opinion of the court, said:

“In order to establish a new habitual residence, it is not necessary to show that when the child moved to the new country there was any intention to reside there permanently.  Nor need there be any intention to reside there indefinitely.  It is sufficient if there is an intention to reside there for an appreciable period.”

A habitual residence could be for a limited period.  Thus, even if the minute of agreement was to be construed as an arrangement limited to six months,

“that would…. be an appreciable period sufficient to show that by 12 April 1995 the children were habitually resident in France.  If on 12 April 1995 one were to ask, where was the normal residence of these children, the only answer which could be given would be that it was in France.”

For these reasons the Second Division was satisfied that the Lord Ordinary had reached an erroneous conclusion and that his interlocutor refusing the petition should be recalled.  The case was remitted to the Outer House for further procedure.  

[17]      The approach and the decision in Cameron have obvious relevance for the circumstances of the present appeal.  They also resonate with the recent UK Supreme Court guidance.  In particular, if parents have agreed to only a time limited residence in another country with one parent, that does not prevent a change in their children’s habitual residence once they are living and settled in their new home.  For these purposes six months can be “an appreciable period”;  in other words, one which is long enough to involve the necessary degree of continuity, or, to echo Baroness Hale’s phrase, “quality of stability”.  The parties’ intentions (or agreement) as to the children’s move can be relevant, not in the sense of an agreement to a change in their habitual residence, but rather as a relevant factor to be taken into account in deciding whether the residence has “a settled purpose”.  If the Second Division’s approach is applied to the present case, and one asks, where was the normal residence of the children as at late November 2013, in our view the answer would be Scotland. 

[18]      The case of Dickson v Dickson 1990 SCLR 692 was discussed, and since there are passages in the opinion of the court, delivered by Lord President Hope, which might be thought to support the Lord Ordinary’s approach, it is necessary to consider that case.  The Lord Ordinary, Lord Caplan, held that a two year old boy’s parents had decided that the family should move from Australia to the UK.  The father left Australia with the child, the mother staying behind but intending to join them later.  She changed her mind, and claimed that the retention of the child in the UK by his father was wrongful in terms of article 3 of the Convention.  The court was asked to return the child to Australia.  The petition was refused on the basis that by the time of the retention the child had lost his habitual residence in Australia.  The argument for the petitioner had similarities to that of the present petitioner, namely that there had been no change in “the family home” (Ms Wild referred to “the family unit”).  It was contended that the matrimonial home remained in Australia. 

[19]      Earlier in his opinion Lord Caplan expressed the view that one parent could not unilaterally change the habitual residence of a child.  However it is plain that he raised this in the context of retention at the end of a holiday or access period, where, as he puts it, there had been no agreement to a change in the child’s habitual residence.  He also defined habitual residence as synonymous with a child’s ordinary or normal residence.  In this relatively early case, his Lordship might be said to have obscured this purely factual issue with what have since been termed “legalistic glosses”.  For example he said “there has to be an element of intention to fix the residence as habitual or normal as distinct from extraordinary”.  He immediately added “I doubt whether any extensive time is required to fix a residence as habitual”, though he presumably implied into this the presence of the necessary “intention”. 

[20]      The Lord Ordinary’s decision in Dickson was appealed.  When delivering the opinion of the court, the Lord President, Lord Hope, noted that there was no criticism of the Lord Ordinary’s view that an element of intention is involved in fixing the residence as habitual;  thus the court did not examine the matter in detail.  However his Lordship observed that “a habitual residence is one which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time.”  He likened the concept to that of ordinary residence.  At this point, it would seem that Lord Hope was speaking of intention in the purely factual context of the circumstances of the residence in a particular country.  However he added:

“Where the parents separate, as they did in this case, the child’s habitual residence cannot be changed by one parent only unless the other consents to the change.  That seems to us to be implied by the Convention.”

It is unclear whether this was intended to give one parent a veto, whatever the factual circumstances, but it is capable of being construed in that way.  In the circumstances of that case, the Lord President stressed that the child left Australia to settle in the UK with the consent of both parties;  thus he lost an Australian habitual residence as soon as he left.  It could not revive simply because one parent subsequently changed her mind.  At page 703D his Lordship said:  “That would be contrary to the principle that the consent of both parents in these matters is required.”

[21]      It is doubtful whether this emphasis on shared parental intention can be reconciled with the recent guidance from the UK Supreme Court to the general effect that habitual residence is an issue of fact to be determined by applying the ordinary meaning of the phrase.  However the decision in Dickson provides no support for Ms Wild’s basic proposition that the search is for the last place where all members of the family lived together as a settled family unit.  Also it suggests that importance can be attached to the fact that both parents agreed to the children’s move to Scotland, at least for a year.  

[22]      Counsel also discussed KT v JT 2004 SC 323.  The decision turned on the question of consent under article 13 of the Convention.  After hearing oral evidence, the Lord Ordinary found that the father had not consented to the children’s mother retaining them in the UK.  He ordered their return to Australia.  After a full review of the evidence, the First Division decided that the Lord Ordinary’s findings were flawed;  Lord Cameron of Lochbroom referred to a misdirection on his part.  In particular, if agreement is given by an unhappy father who has grave reservations about the adopted course, nonetheless it remains consent for the purpose of article 13.  The consent was not limited to a holiday period, and any uncertainty as to the mother’s eventual movements did not vitiate the unqualified consent to an indefinite stay.  As Lord Marnoch said

“It is perfectly possible to consent unambiguously to an uncertain future, which includes the possibility of the other parent remaining abroad with the child or children of the marriage indefinitely.”

Though the decision is not directly relevant to the present discussion as to habitual residence, it is an interesting example of the appeal court being prepared to reach a decision of new once persuaded that the Lord Ordinary adopted a flawed approach, even in a case where he heard oral evidence 

Outcome and more general remarks
[23]      Having decided in favour of Ms Innes’ submissions upon habitual residence, we shall uphold the reclaiming motion, quash the return order, and refuse the prayer of the petition. 

[24]      Though not necessary for the disposal of the case, it is appropriate to say something about the other issue argued before the court.  On the matter of consent we would have rejected Ms Innes’ submissions.  In raising the Scottish proceedings, the respondent was signalling her intention to stay in Scotland with the children beyond the period of her maternity leave.  The parties did not agree that the children should live in Scotland on a permanent basis.  That might have been the long term outcome, but there is no evidence upon which consent to that by the petitioner can be gleaned or inferred. 

[25]      The above opinion has been reached on the basis that there is no need for an analysis of the large amount of information lodged in the form of affidavits and productions.  Without intending any disrespect to the detailed submissions made upon this material, in our view the case can be resolved by reference to a few basic and uncontroversial facts.  As was clearly demonstrated in the appeal hearing, there was plenty of scope for disputation, for example as to the significance, if any, of the sale of the family home in France and the division of the free proceeds between the parties;  the petitioner’s subsequent purchase of a house in France;  the employment of a manager for the petitioner’s business;  the ending of the employment of the older daughter’s child minder;  the petitioner’s purchase of a car in Scotland;  the storage of certain property in France;  and of the allegations of misrepresentations by the parties to French and Canadian authorities.  However, none of the material lodged, nor the parties’ various submissions and arguments thereon, supersede or detract from what can be taken from the undisputed facts.  Whatever else, there was an agreement that the respondent and the children would live for at least a year in Scotland, and this was acted upon in the manner recognised by the Lord Ordinary.