Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 130

P502/15

OPINION OF LORD STEWART

in the Petition

FJM

Petitioner;

for

orders under the Child Abduction and Custody Act 1985

and Answers for

CGM

Respondent:

Petitioner:  Hayhow;  Wright & Crawford, Paisley

Defender:  Shewan;  Balfour & Manson LLP

29 September 2015

[1]        I heard submissions in this international child abduction case at a first hearing on 10 and 11 June 2015 and made avizandum.  I have now decided to refuse the petition.  I have reached the conclusion that the petitioner has acquiesced in the wrongful removal of the children by the respondent from their habitual residence in Australia;  and I take the view that it would not be appropriate to return the children from Scotland to Australia.

[2]        The father petitioner FJM and mother respondent CGM are married.  There are two female children of the marriage, IM (born 20 July 2007) now aged eight and EM (born 17 March 2009) now aged six.  Until 13 December 2014 the parties lived together.  At that date the parties and their children were habitually resident in the State of New South Wales, Commonwealth of Australia.  The parties shared and exercised parental rights.  The petitioner claims that the respondent abducted the children on 13 December 2014 and wrongfully removed them to Scotland in the United Kingdom.  The Commonwealth of Australia and the United Kingdom are signatories of the Hague Convention on the Civil Aspects of International Child Abduction.  The petitioner seeks the return of the children to New South Wales by an application made in terms of the Hague Convention article 12.  The application is presented in Scotland by petition to the Court of Session in terms of the Child Abduction and Custody Act 1985 s 1 schedule 1 which incorporates the Hague Convention or most of it.

[3]        The respondent accepts that she removed the children wrongfully.  She contests the application for a return order on the basis that the petitioner has acquiesced in the removal and that the court should exercise its discretion not to return the children.  In this she relies on the Hague Convention article 13(a).  Part of the respondent’s case for acquiescence is that the petitioner undertook during mediation held in Scotland not to insist on his Hague Convention return application and agreed that the children should remain in Scotland.  The petitioner retorts that evidence of what occurred during the mediation is inadmissible by the application of section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995.  (This is the sole competency objection to the evidence: the petitioner does not seek to have the mediation evidence excluded on the basis of negotiation privilege at common law.)  The respondent counters that one of the 1995 Act exceptions to inadmissibility applies.

[4]        The petitioner then objects that the respondent gives no notice in her pleadings of relying on the exception.  Mr Hayhow, counsel for the petitioner, was, however, prepared to meet the argument;  and the petitioner was not apparently prejudiced by the lack of express notice.  I allowed the evidence about what reportedly occurred both at the mediation and also immediately after the mediation under reservation.  Having reflected on the matter my decision is that the mediation evidence is admissible;  and that the petitioner’s objections should be repelled.   

What occurred during mediation?
[5]        On 15 April 2015 the parties attended a mediation session at Dunfermline, Fife, Scotland, with Jean Gunn, a mediator with Relationships Scotland Family Mediation, Tayside and Fife.  Counsel agreed at the bar, on the basis of information helpfully supplied by my clerk and the Keeper of the Rolls, that Relationships Scotland, including its constituent entities such as Family Mediation Tayside and Fife, is a family mediation organisation approved by the Lord President for the purpose of the 1995 Act.  The respondent describes what happened at the end of the session as follows [affidavit of respondent No. 7/20, paragraph 16]:

“Towards the end of the session, the mediator suggested it would be good if we wrote up an understanding of what had been agreed.  Fraser wrote up what we agreed in his own hand and this was passed to the mediator to type up …  We went to the pub after the mediation and continued our discussions privately regarding our house.”

I accept this evidence.  It is consistent with the email traffic between Relationships Scotland Family Mediation and the parties and between the parties themselves.  There is circumstantial confirmation from the respondent’s mother [affidavit of Jane Glen No. 7/21 of process, paragraph 10].  Three things in the emails and email attachments have to be explained.  References to “Haig” should be read as “Hague”, meaning the Hague Convention return process;  references to “exchange” of the house are references to the transfer to the petitioner by the respondent of her title to the family home in New South Wales, she being the sole registered owner;  and “Oz” means Australia.  The points as written by the petitioner in the mediator’s notebook were:

“Responsibilities in Oz resolved ASAP i.e. 6 weeks.

House ownership exchanged.  Haig cancelled.

1 year plan F in England C and kids remain in Scotland.

School holiday contact flexible.

Financial plan for kid’s maintenance.

In one year or when appropriate we mediate.”

The typed-up version was sent as an attachment to the email dated 16 April 2015 from Joyce Smart, administrator with Relationships Scotland Family Mediation, Tayside and Fife.  Ms Smart referred to the attachment as a “summary of mediation on Wednesday 15 April which we trust is a true reflection of what was agreed” [6/10/1].  The attachment was in the following terms [7/9]:

“UNDERSTANDING MADE BETWEEN CM AND FM AT MEDIATION IN DUNFERMLINE ON 15 APRIL 2015

• Dad will return to Australia to resolve his responsibilities as soon as possible;Dad then plans to return to the UK in   weeks’ time.When in Australia Dad will exchange ownership of the house;Dad will also cancel the Haig process.

   

• Both parties mutually agreed that Mum will reside in Scotland with the children.

   

• Dad said when he returns to the UK he will reside in England for one year.

   

• Mum agreed that when Dad is in the UK he will have residential contact of the children during the school holidays.Both parties agreed to the arrangements being flexible.

   

• When Dad returns to the UK he will make a financial plan for the children’s maintenance.

   

• Dad and Mum agree to mediate on Dad’s return or when appropriate to do so.”

   

  The respondent replied by email of 16 April 2015, copied to the petitioner, stating that parties “did not finalise any agreement” on the house [6//10/1].

  [6]        By email dated 18 April 2015 the petitioner replied to Joyce Smart.  The respondent was not copied in [6/11/1]:[1]

  “Many thanks for your email and content therein.  I would also like to dispute point 2 of the attached summary to state that I do not agree that the children reside permanently in Scotland with their mother, but reside there as a temporary measure until permanent, mutually agreeable residence is sought.”

   

  Importantly, the statement “I do not agree that the children reside permanently in Scotland ...  but ...” implies the petitioner’s agreement for the children to be resident in Scotland, if only for the time being.  Joyce Smart replied by email dated 20 April stating:  

  “... Jean has asked that we clarify, primarily, the fact that it was recorded as an ‘Understanding’ and not an ‘Agreement’, however we have reworded as attached, and hope that this is satisfactory...” [6/12/1].

   

  The reworded document was in the following terms [6/12/2]:

  “UNDERSTANDING MADE BETWEEN CM AND FM AT MEDIATION IN DUNFERMLINE ON 15 APRIL 2015

   

• Dad will return to Australia to resolve his responsibilities as soon as possible;Dad then plans to return to the UK in 6 weeks’s time.

   

• House ownership exchange (to be discussed at next session).

   

• Dad will cancel the Haig process.

   

• Mum residing in Scotland with the children (to be discussed at next session).

   

• Dad said when he returns to the UK he will reside in England for one year.

   

• Mum agreed that when Dad is in the UK he will have residential contact of the children during the school holidays.Both parties agreed to the arrangements being flexible.

   

• When Dad returns to the UK he will make a financial plan for the children’s maintenance.

   

• Dad and Mum agreed to mediate on Dad’s return or when appropriate to do so.”

Neither party challenged this summary.  Subsequently — when is not clear — the mediator, Jean Gunn, sent the following email to the parties [7/28]:

“AN UNDERSTANDING MADE BETWEEN CM AND FM AT MEDIATION IN DUNFERMLINE ON 15 APRIL 2015

Dear C and F,

I apologise for causing you further issues and I have certainly learnt from this.  It appears that we needed more time at mediation to work on the detail of what was said.  This would have ensured clarification.  To resolve this conflict I have copied the wording exactly (without any prefixes or alterations) as negotiated by you both and then written in my notebook by F and then read out by me.  Think of it as a summary of how you both felt at the time.  I wish you both all the best in the future”

There followed the list, which is set out above, written in Ms Gunn’s notebook by the petitioner. 

[7]        The respondent explains the amendment proposed by the petitioner to the first typed-up version of 16 April 2015 to be the result of an argument on the phone on 26 April 2015 when the petitioner maintained that the children should live in England [affidavit of petitioner No. 7/20 of process, paragraph 16].  This does not fit with the other dates.  The petitioner’s email of 20 April 2015 following his return to Australia stated: “… great progress was made in the mediation and I fully expect that to continue” [No. 7/7 of process].  It is impossible for me to say that the email was sent after receipt by the petitioner of the email from Joyce Smart also bearing the date 20 April 2015: but as regards the Hague points, which were uncontested, it does not matter;  and the petitioner continued to be positive about the mediation process.  I find that the shared intention was to continue mediation in Scotland.  By email copied to the parties’ parents on 6 May 2015 the petitioner referred to the sale of the family home in New South Wales, his imminent return to the United Kingdom and continuing “both family and financial” mediation, asking the respondent to “organise some dates” [No. 7/24(aa) of process].  Nothing in the copious contemporary documentation suggests that “family mediation”, as regards the children, was to be about anything other than the children’s residence and parental contact within the United Kingdom.  The Hague Convention petition was presented and served nine days later on 15 May 2015.  The explanation offered for what appears to be a complete about-turn is that the petitioner did not mean what he said in his various statements agreeing or implying agreement to the children not being returned to Australia.

[8]        I interpret what occurred at the mediation session, in its context, to include a unilateral undertaking by the petitioner that he would abandon his Hague Convention return process;  and an agreement that the children would stay in the United Kingdom and, specifically, for at least twelve months, in Scotland.  The context includes email exchanges between the parties.  The Hague cancellation point was not contested by the petitioner in his subsequent emails.  The petitioner pleads:

“The emails referred to by the respondent are part of a chain of emails between them.  They require to be understood in their whole context.”

The irony is that the “whole context” clearly includes the mediation session.  (Does the legislation envisage mediation as part of an ongoing dialogue? Probably not, if the focus is on mediation following court referrals, with parties incapable of negotiating voluntarily.) One point that is not taken by the respondent is that, by putting in evidence emails commenting on the mediation process, the petitioner has passed from his right to take the inadmissibility objection. 

[9]        Whatever the precise intentions about the future residence of the children, there was no clear suggestion after the early stages of the separation that the children should return to Australia.  I find as a fact that the mutual understanding was that the children would live in the United Kingdom, though it may not have been settled whether ultimately in Scotland or England.  This is all that matters when the issue is about acquiescence in the removal from Australia.  I find that the petitioner did acquiesce in the removal of the children from Australia.  I also note that the acquiescence evidenced at the mediation session was expressed after the petitioner had had an opportunity to satisfy himself about the children’s living conditions in Scotland, about their schooling and about their emotional state —immediately before the mediation the children had been on holiday with the petitioner and his parents for two weeks in Ipswich.  The above findings and inferences about acquiescence are made on the assumption that the mediation evidence is admissible.  This depends on a certain interpretation of the Civil Evidence (Family Mediation) (Scotland) Act 1995.

Civil Evidence (Family Mediation) (Scotland) Act 1995
[10]      There are three remarkable things about the Civil Evidence (Family Mediation) (Scotland) Act 1995: it is very short;  in the twenty years of its existence it has never been interpreted by the courts;  and neither the proceedings in Parliament, nor the Scottish Law Commission papers which were the genesis of the legislation gave attention to the international child abduction dimension.  Correction:  the Scottish Law Commission report mentions “the abduction of children” only to dismiss it as a concern from the mediation-privilege point of view (see below).

[11]      The Act provides by section 1(1):  “Subject to section 2 of this Act, no information as to what occurred during family mediation to which this Act applies shall be admissible as evidence in any civil proceedings.” By section 1(9) it is provided that “any reference to what occurred during family mediation shall include a reference to what was said, written or observed during such mediation.” In the present case the issue between counsel is whether the section 2(1)(a) exception applies: “Nothing in section 1 of this Act shall prevent the admissibility as evidence in civil proceedings of information as to any contract entered into during family mediation or of the fact that no contract was entered into during such mediation.” So counsel ask me to decide whether or not the “Understanding made between [parties] in Dunfermline on 15 April 2015” is an excepted “contract” within the meaning of the Act.

[12]      The submissions on this point amount to not much more than assertion and counter-assertion without reference to case law, comparative jurisprudence, authorities on the meaning of “contract” or interpretative aids.  Mr Hayhow for the petitioner submits that a distinction has to be drawn: a “contract” is a concluded agreement resolving the whole issues and in respect of which there is a formal undertaking to adhere;  whereas the document founded on in this case [primarily No. 7/9 of process], in contrast, is a summary of areas of discussion, not an agreement between parties but a recording of the mediator’s impression.  Ms Shewan for the respondent submits that “contract” does not have a technical meaning;  “contract” simply means an “agreement”;  and that the “understanding” which was “made” between the parties was and is — except I suppose where subsequently qualified — an agreement between the parties.  If the petitioner contends that “no contract was entered into during mediation” then, equally the material can be looked at in terms of the second branch of section 2(1)(a), “the fact that no contract was entered into during such mediation”.  In children cases the court has a duty to look at all relevant material unless excluded in the clearest terms.  This material is not excluded in the clearest terms.

[13]      Mr Hayhow replies that admitting the evidence by the back door — around the issue of whether or not a contract was entered into — is contrary to the plain intention of Parliament;  and he summarises the legal policy reasons for putting mediation beyond the scope of forensic inquiry.  I assume, though I have no note that it was spelled out during the debate, that Mr Hayhow contends for the non-admissibility of the mediation material under section 1(2)(a)(v) of the 1995 Act, namely “family mediation … relating to … any other matter relating to the welfare of a child”.

[14]      I have checked for myself and, as counsel say, there is no reported case (apart from MT v DT 2001 SC 337 which was about something else but has brief obiter dicta about the meaning of “admissibility” and the policy of the 1995 Act).  There is, however, potentially useful interpretative material namely Scottish Law Commission, Discussion Paper No 92, Confidentiality in Family Mediation (Edinburgh, 1991);  Scottish Law Commission, Scot Law Com No 36, Report on Evidence: Family Mediation (Edinburgh, 1992);  Hansard, especially HL Deb 14 March 1995, vol 562, cols 794-800 and 27 March 1995 vol 562 cols 1438-1445;  Hague Conference on International Private Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation (The Hague, 2012);  Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters;  the European Code of Conduct on Mediations.  I should have valued counsel’s views on this material:  but given that the six-week Hague deadline of 26 June 2015 is long past;  given that the respondent’s solicitors have been pressing for a decision by emailing my clerk since 30 June 2015;  and given the difficulties of getting everyone together during the Court vacation, I have decided to proceed without hearing counsel further.  I have to observe that the debate in Court might have taken a different turn had we known what I now know, namely that the Scottish Law Commission’s draft bill wording for section 2(1)(a) — “any agreement (whether written or oral)" — was amended during the third reading in the House of Lords to be “any contract” as now enacted. 

[15]      The Scottish Law Commission report focuses on referrals by the courts.  As at the report date referrals were governed by provisions for “conciliation” [Act of Sederunt (Amendment of Sheriff Court Ordinary Cause, Summary Cause, and Small Claim, Rules) 1990 SI 1990/661, rule 132F;  Act of Sederunt (Rules of the Court of Session Amendment No.1) (Miscellaneous) 1990 SI 1990/705, rule 170B(15)].  The report summarises the situation at the report date as follows:

“1.5     In 1990 new rules of court were made which empowered the courts in actions where custody of, or access to, children is in dispute to refer the litigants to a specified local family conciliation service.  In the Court of Session a referral requires the consent of the litigants;  the sheriff may make a referral without their consent.  People also go to conciliation voluntarily before legal proceedings have commenced.  Family conciliation is used extensively.  In the 12 months prior to March 1991 just over 2,500 references (court and voluntary) were made, but only a proportion of these resulted in conciliation sessions.”

At the date of the 1995 Act the rules authorised disputes about “the custody of, or access to, a child” to be referred to “mediation and conciliation” without consent in the sheriff court and with consent in the Court of Session [Act of Sederunt (Rules of the Court of Session 1994) 1994 SI 1994/443, rule 49.23;  Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 SI 1993/1956 rule 33.22].  A hint within the 1995 Act that the Act has in view primarily court-ordered mediation is the restricted application of the Act:  it applies only to family mediation “which is conducted by a person accredited as a mediator in family mediation to an organisation which is concerned with such mediation and which is approved for the purposes of this Act by the Lord President of the Court of Session.”  By changes made in 1996 the respective rules were amended to drop the reference to “conciliation” and to empower the Court of Session to make referrals without consent [Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 1996, SI 1996/1756;  Act of Sederunt (Family Proceedings in the Sheriff Court) 1996, SI 1996/2167].  The present Court of Session rule RCS 49.23 provides: “In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the court may, at any stage of the action where it considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.”  “Family action” is defined (see below).

[16]      At this point I have to notice that the 1995 Act applies to a wider area than RCS 49.23 but nonetheless to a restricted area.  The 1995 Act applies, that is, only to family mediation about specified matters [cf. Cross-Border Mediation (Scotland) Regulations 2011;  Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters].  Section 1(2) of the 1995 Act specifies the matters.  Subsections (2)(b) to (d) as amended apply the 1995 Act to matters arising between spouses, purported spouses, civil partners and cohabitants out of the breakup of their relationship.  The specific provision for issues about children in subsection (2)(a) suggest that the relationship break-up subsections (2)(b) to (d) are not meant to apply to issues about child welfare.  Subsection (2)(a)(i) to (v) applies the 1995 Act to family mediation between individuals relating to the residence of a child, contact with a child, direction of a child’s upbringing, guardianship of a child and “any other matter relating to a child’s welfare”.  Issues about financial provision for children — which must include issues between individuals who have never cohabited — may possibly fit in under the “any other matter” head (2)(a)(v) [cf.  Scottish Law Commission, Report on Evidence:  Family Mediation, paras 3.09, 3.10 and 3.51].  Subsection 1(2)(e) empowers the Secretary of State (now the Scottish Ministers) to apply the 1995 Act to family mediation “of such other description” as may be prescribed. 

[17]      In my view the arguments for the proposition that the 1995 Act does not apply to mediations about cross-border abductions have the edge.  First, as already stated, nothing in the legislative back story suggests that the 1995 Act is meant to apply to mediations about cross-border abductions.  Secondly, the focus of the 1995 Act, as far as children are concerned, is on court-referred mediations;  and the courts never have had power to refer Hague disputes as such to mediation — in terms of RCS 49.1(1) the definition of “family action” for the purpose of mediation in terms of RCS 49.23 does not include Hague proceedings.  Thirdly, the 1995 Act is not framed with a cross-border reach to exclude evidence about mediations in other jurisdictions, even in other Hague-partner jurisdictions: the 1995 Act s 1 applies only to mediations, reading short, approved by the Lord President of the Court of Session.  This asymmetry does not fit well with a reading that applies the 1995 Act to Hague disputes.  In the instant case the parties went for “couples counselling” in New South Wales before the separation and abduction;  and the petitioner gives evidence about what occurred [supplementary affidavit No. 6/13 of process, paragraph 8].  Fourthly, the language of the 1995 Act reads as if the legislation is not intended to apply to mediations about Hague disputes.  I enlarge upon this below.      

[18]      Mediation has to be contemplated as a means of resolving Hague abduction disputes for the reason that article 7(c) of the Hague Convention (which is incorporated and has the force of law in the United Kingdom) requires signatory states to take appropriate measures “to secure the voluntary return of the child or to bring about an amicable resolution of the issues”.  Were abduction disputes omitted from the Scottish Law Commission’s draft bill by design or by inadvertence?  The answer is: by design.  The Scottish Law Commission reported [para 3.49]:

“In our discussion paper we also asked whether there were any other circumstances relevant to the interests of children where privilege should not apply.   One issue that many commentators mentioned was the abduction of children.  We think this is more a question of deciding whether to disclose information rather than whether it should be admissible as evidence in subsequent proceedings.  Where a mediator becomes aware as a result of mediation sessions that one participant intends to remove a child from the United Kingdom he or she should carefully consider telling the other participant or alerting the appropriate authorities directly so that steps can be taken to prevent removal.”

The first two sentences indicate a view, possibly the only view, expressed by respondents that mediation evidence about abductions should be admissible.  At the very least I feel able to conclude that the report did not contemplate excluding evidence about mediations in Scotland aimed at resolving the abduction of children to Scotland.

[19]      When the report says that “this is more a question of deciding whether to disclose information” it looks as if the issue is being avoided, and understandably so, perhaps.  Excluding mediation evidence about abductions would be a challenging project.  Should threats of non-consensual removal made at mediation be reported to “the appropriate authorities” but kept from the courts after the event?  Should admissions of wrongful removal made during post-abduction mediations be kept from the courts?  Should unilateral undertakings given during mediation not to embark on, or to desist from a Hague return process be kept from the courts?  An undertaking of this kind might be acted on, might determine whether children travel thousands of miles;  and might be key to a Hague consent or acquiescence defence.  Would it be fair and reasonable to exclude evidence of such undertakings?  Another aspect of the challenge is about resources.  There is a view that cross-border family mediation requires specialist mediators, even specialist processes [Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction:  Mediation (The Hague, 2012)].  I do not know that these resources have ever been available in Scotland;  and, if they are now available, I believe that they do not have the approval of the Lord President.  I have in mind organisations like Reunite International Child Abduction Centre based in Leicester.

[20]      I have looked at the context because it may be that the statutory wording by itself is open to more than one reading.  Coming back to the wording, the 1995 Act goes into detail, section 1(2)(a)(i) to (iv), about the kinds of child welfare mediations within its scope: the list does not specify cross-border abduction matters.  The omission may be determinative:  but, if not, the question then is whether Hague disputes come within the words of section 1(2)(a)(v) “family mediation … relating to … any other matter relating to a child’s welfare”.  The wording looks as if it is meant to cover subjects which are eiusdem generis with residence (with which carer rather than where), contact, upbringing and guardianship.  Another reason for not reading section 1(2)(a)(v) as a residual catch-all is that section 1(2)(e), in both the Scottish Law Commission’s draft bill and in the legislation as enacted, authorises enlargement of the scope of family mediation for the purpose of the 1995 Act.  The Scottish Law Commission reported [para 3.10]:

“We think it would be useful to have some flexibility to cater for future changes without having to have recourse to further primary legislation.  Flexibility would also be desirable to correct any deficiencies in the scope of the presently recommended categories of dispute that became apparent after the legislation had been in operation.”

So the list of matters covered is recognised to be incomplete or potentially so.  Lastly, Hague disputes are not directly — unless, possibly, in extreme cases in terms of Hague Convention article 13(b) — about welfare.  This was clear at the date of the Scottish Law Commission report and at the date of the legislation [Re N (Minors) (Abduction) [1991] 1 FLR 413 at 418;  Perrin v Perrin 1994 SC 45;  Soucie v Soucie 1994 SCLR 1026]:  Hague disputes are about return orders, jurisdiction, the proper forum for deciding matters “relating to a child’s welfare”.  The Hague Convention does not mention “welfare”.  According to article 1 the objects of the Hague Convention are (a) to secure the prompt return of children and (b) to “ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 16 of the Hague Convention actually prohibits the state to which a child has been removed from deciding custody rights while a Hague return application is outstanding.  The assumption is that the competent forum is a court in the jurisdiction of habitual residence.  The prompt return of a child deprives the abducting parent of practical or legal benefits she or he may hope to reap from the situation;  and it reduces the risk of conflicting judgments and international private law complications.  There is a public order dimension — every abduction, if unchecked by the courts, involves the possibility of a counter-abduction and a risk of escalating disorder even personal violence [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;  In re M (Abduction:  Rights of Custody) [2008] 1 AC 1288;  E (Children), Re [2011] UKSC 27;  Neulinger and Shuruk v Switzerland 41615/07 [2010] ECHR 1053 (6 July 2010), [2011] 1 FLR 122, § 1;  Povse v Alpago, [2010] EUECJ C-211/10 (1 July 2010), [2010] 2 FLR 1343;  M Roberts, Mediation in Family Disputes, 3^rd edition (Aldershot, 2008)]. 

[21]      For the reasons just given I take the view that the legislature did not intend the 1995 Act to apply to mediations about Hague disputes.  Even if the 1995 Act does apply to Hague disputes, there is a real question whether it protects all of the material which is the subject of the present debate.  The Scottish Law Commission reported [para 3.33]:

“Documents prepared after the [mediation] sessions containing draft proposals for settlement would not be protected under our recommendations, but would be protected from disclosure in court under the existing privilege in favour of offers made to settle disputes.”

Are the documents sent by Jean Gunn and Joyce Smart after the event, or any of them, non-protected documents even if the subject matter of the mediation were within the ambit of the 1995 Act?  I can see a strong argument that the second document sent by Joyce Smart at least is non-protected: but have not taken a view on this question.  Attentive readers will be aware that I have not answered the question debated by counsel whether the 1995 Act exception for “contracts” applies.  Arguably the exception does apply:  but I find it unnecessary to decide that question given my conclusion that the 1995 Act does not apply to the mediation between the parties, or does not apply to the extent that Hague Convention matters were discussed.  I have not taken a view on whether the mere fact of engaging without reservation in mediation in the destination state, about arrangements for residence and contact within the destination state, as the petitioner has done, in itself amounts to acquiescence.  If the mediation which took place in Dunfermline were a “cross-border mediation” in terms of Directive 2008/52/EC the mediators cannot be compelled to give evidence in terms of the Cross-Border Mediation (Scotland) Regulations 2011 reg 3 “Confidentiality of Mediation”. 

Other evidence relevant to acquiescence
[22]      On balance, even if the mediation evidence were to have been excluded, I should have found that the petitioner acquiesced in the removal of the children from Australia.  In considering the effect of the other evidence submitted by each side I have had regard to the guidance given in D v D 2002 SC 33 at paragraph 8 cited to me by counsel for the petitioner.  This is not a case in which delay as such is founded on as the basis for the plea of acquiescence [cf.  M v M 2003 SC 252].  From the earliest point the petitioner was aware of his potential Hague Convention remedy [affidavit of petitioner No. 6/4 of process, paragraph 60;  email from petitioner to respondent dated 23 December 2014, No. 7/24(c) of process].  The petitioner’s counsel tells me that the petitioner’s position always was and has been that he would “go the Hague route” unless differences could be resolved.  No reason has been offered for not seeking a Hague return order until May 2015, other than that, ultimately, differences could not be resolved.  What were these differences?  The differences about the children, such as they were, do not seem to have been important.  I discern the essential sticking point to have been an issue between the petitioner and the respondent about their respective financial interests in the former matrimonial home and the lending secured over the home, not an issue about the children, although there was linkage, I infer, in the minds of both parties despite protestations to the contrary [eg email from the petitioner to the respondent dated 15 March 2015, No. 7/24(r) of process].

[23]      What is striking about the petitioner’s position is that apart from an initial suggestion that the children should return to New South Wales with his mother for a final term at school while renovations on the family home were being completed and in order for the children to “have a sense of closure to their lives in Australia”, the petitioner at no stage proposed arrangements for care of the children should they return to New South Wales permanently [affidavit of the petitioner No. 6/4 of process, paragraph 65, annex E].  He did not make proposals to the respondent.  There is no evidence that he shared his plans for the children with family or friends.  There is no evidence that he had such plans.  The petitioner has not raised custody proceedings in New South Wales or anywhere else.   

[24]      It is understandable that the left-behind parent might feel justified in using deception to even up the odds.  In his affidavit the petitioner testifies that he did not mean what he said in emails and telephone conversations about being happy to live in the United Kingdom, about consenting to the children being in Scotland at least for an initial period, and about not pursuing the Hague option [affidavit of petitioner No. 6/4 of process, paragraphs 65 and 67, annex D, annex E;  email from the petitioner to the respondent dated 27 March 2015, No. 7/24(t) of process;  email from the petitioner to the respondent dated 20 April 2015, No. 7/24(w) of process;  supplementary affidavit of the petitioner No. 6/13 of process, paragraphs 12, 15 and 17].  Counsel for the petitioner told me that the petitioner’s representations to the respondent and to estate agents about selling the family home in New South Wales and returning to the United Kingdom were false, that the petitioner was “trying to manipulate and deceive the respondent” [email from petitioner to respondent dated 24 January 2015, No. 7/24(h) of process;  email from petitioner to respondent dated 17 April 2015, No. 7/24(v) of process;  email from petitioner to respondent dated 6 May 2015, No. 7/24(aa) of process;  email from estate agent to respondent dated 8 May 2015, No. 7/29 of process].  Having made allowances for the petitioner, and taking account of the jurisprudence to which I have been referred, I have come to the conclusion that I must find that the petitioner has acquiesced [In re H (Minors) (Abduction: Acquiescence) [1998] AC 72 at 85—90 per Lord Browne Wilkinson;  M v M 2003 SC 252 at [9], [15] and [16];  BG v BG (Abduction: Acquiescence) [2008] 2 FLR 965 at [17]—[22];  BT v JRT (Abduction: Conditional Acquiescence and Consent) [2008] 2 FLR 972 at [70].

[25]      It is not just a question of allowing the abducting parent to form an impression of acquiescence: it is also about allowing arrangements to be made for the children to settle in the destination country [eg petitioner’s affidavit No. 6/4 of process, annex G, respondent’s email to the petitioner 16 January 2015:  “This is not a game, I need to know what you are up to.”]  In this case the respondent told the petitioner on 17 December 2014 that she wished to enrol the children in school in Scotland.  The petitioner initially responded that he would like the children to continue their schooling in Australia: but he did not follow that up [affidavit of petitioner No. 6/4 of process, paragraph 61, annex B].  The children were enrolled in school in Scotland.  The petitioner visited the children’s school in Scotland, spoke with the head teacher or the deputy head and was informed that the children were excelling academically and socially.  There is no evidence that the petitioner expressed or even felt reservations at that stage about the upbringing of the children in Scotland.  The petitioner testifies that he was doing the responsible thing [supplementary affidavit of petitioner No. 6/13 of process, paragraph 15].  So he was;  and the responsible thing that he did and the way he did it was emphatically more consistent with the non-return of the children to New South Wales than the reverse [affidavit of the respondent No. 7/20 of process, paragraph 15;  supplementary affidavit of the petitioner No. 6/13 of process, paragraph 15].

[26]      The petitioner now has proposals for the children to return to live with him in Australia: but these are in fairly general terms [affidavit of petitioner No. 6/4 of process, paragraphs 79—83;  supplementary affidavit of petitioner No. 6/13, paragraphs 17 and 19].  As I say, he has not raised custody proceedings.

Whether to make a discretionary return order
[27]      Having found that there was acquiescence by the petitioner in the removal of the children from New South Wales I am not bound to make a return order: but it is open to me to make a return order if a return order would be appropriate.  My view is that it would be inappropriate to make a return order.  This does not foreclose the question where and with whom the children should normally reside.  In the event of an ongoing dispute between the parties the question is an entirely open one to be decided by any court of competent jurisdiction in Scotland, England, New South Wales or wherever having regard to the best interests of the children.  In addressing the question of discretionary return I have had regard to the cases cited to me by counsel including In re M (Abduction: Rights of Custody) [2008] 1 AC 1288 especially at [32]—[54] per Baroness Hale of Richmond. 

[28]      The petitioner was born in Ipswich, Suffolk, England.  The respondent was born in Lamlash, Isle of Arran, Scotland.  The parties are respectively 41 and 40 years old.  They are British citizens.  I am told that the respondent also holds Australian nationality [affidavit of petitioner No. 6/4 of process, paragraph 6].

[29]      The parties met while travelling in Australia 16 years ago.  In 2000 they moved to Scotland to live together.  They returned to Australia in 2004 with a view to settling permanently in Australia.  The parties married in 2007 shortly after the birth of their first child.  The children have lived all their lives in Australia.  They have dual British/Australian nationality.  The paternal grandparents live in Suffolk.  The maternal grandmother lives in Fife;  and the maternal grandfather has re-married and lives in France.

[30]      In 2013 the children spent six months in Scotland with the respondent.  The petitioner visited Scotland in 2013 with a view to assessing employment opportunities and looking at places where the family might live.  From late 2013 or early 2014 the parties jointly intended to return to Scotland for at least a trial period of one or two years.  I find as a fact that they hoped to move to Scotland as a family in about February 2015 when it was expected that renovations to the matrimonial home would be complete and the house could be put on the market for sale or to let.  There is a lot of evidence to support this conclusion, the most telling being emails from the petitioner dated 18 December 2015 [7/24(a)] and from the petitioner’s mother dated 15 December 2015 [7/1].  That was the intention.  Detailed plans for the move as a family were never finalised;  and the intention to move as a fully-functioning family was overtaken by other events as the relationship between the petitioner and the respondent broke down.

[31]      The parties stopped sleeping together in November 2014.  They continued to live with their children in the matrimonial home as a family.  On 10 December 2014 the respondent found an apparent confession in the petitioner’s diary that he had slept with her best friend.  The next day the respondent booked travel tickets for herself and the children to Scotland.  I am as satisfied as I can be on the papers that the petitioner’s “confession” was false and was planted by the petitioner to be found by the respondent and for the purpose of testing the respondent [copy diary pages No. 7/17 of process;  supplementary affidavit of the petitioner No. 6/13 of process, paragraph 8;  affidavit of Sally Anne Abrahams No. 7/23 of process, paragraphs 14 and 15.]

[32]      The parties have strong connections with the United Kingdom.  Clearly the children have stronger community, school and friendship ties in New South Wales than they do in Scotland or at least than they did when they arrived in Scotland in December 2014.  Nonetheless the children are familiar with the United Kingdom and have important family ties in the United Kingdom arguably stronger family ties than they do in Australia notwithstanding that their father, the petitioner, may continue to live in New South Wales.  The respondent has always been the main carer for the children.  The petitioner has been the breadwinner.  There are no issues about the respondent’s parenting skills.  The respondent has abducted the children and has taken them over 10,000 miles from the petitioner.  The respondent does not otherwise appear to be motivated to put obstacles in the way of the petitioner having contact with the children.  For example when the petitioner visited the United Kingdom earlier this year there was apparently no difficulty in him having residential contact and taking the children on holiday to his parents’ home in Ipswich.  He is in frequent telephone and skype (video call) contact with the children.

[33]      I see it as highly unlikely that the respondent will return to reside in Australia unless compelled by circumstances to do so.  It would be disruptive for the children to be returned to Australia at this time without certainty as to the future arrangements for their care and upbringing.  If the children are returned, custody proceedings can be envisaged.  Proceedings in Australia could take months or years.  It is not for me to second guess what the decision of an Australian court might be:  but it must be a strong possibility that residence would be awarded to the respondent in Scotland.  If that were to happen and the children were to be returned from Australia to Scotland, the disruption would be doubled.

[34]      On the evidence presented to me the petitioner has worked unusually hard to support his wife and children in Australia and to refurbish the family home.  He deserves credit.  As I read the situation he has come under mental strain from his feeling, whether justified or not, of shouldering the material burdens alone without support.  Given the amount of work he appears to have put into the family home it is not surprising that he has a commitment to the project and the place.  His commitment to his children is unquestioned.  No welfare issues have been raised about the children being with the petitioner although, to be fair, this may be because full-time residence of the children with the petitioner in Australia has not been mooted as a serious possibility until recently.

[35]      The petitioner is entitled to feel legally wronged and emotionally hurt by the respondent’s actions.  The respondent has also offended against the international legal order.  Her conduct is to be disapproved of.  However, it is not a function of these proceedings to punish the respondent.  Balancing as best I can all relevant considerations and weighing the competing submissions of counsel, I have come to the view that it is not appropriate in this case to exercise the power confided to me by the Hague Convention to return the children to New South Wales.  This conclusion implies no disrespect whatsoever for the judicial and administrative institutions of the State of New South Wales and the Commonwealth of Australia.

Decision
[36]      I shall repel e concessu the respondent’s first plea-in-law (consent to removal);  and I shall sustain the respondent’s second plea-in-law (acquiescence).  I shall refuse the petition.  All questions of expenses are reserved.