Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 66

 

P1129/16

OPINION OF LADY WISE

In the Petition of

GCMR

Petitioner

for

an order under the Child Abduction and Custody Act 1985

Petitioner:  Hayhow;  Morton Fraser LLP

Respondent:  N Gilchrist;  Drummond Miller LLP

21 April 2017

Introduction

[1]        The petitioner is 39 years old.  He is Portuguese and has resided in the same region of Portugal throughout his life.  He is the father of the child who is the subject matter of this Petition, a girl, IAR, who was born in Portugal in September 2006 and is now aged 10.  The respondent, IAR’s mother, is also a Portuguese citizen.  IAR was born in Portugal and lived there until December 2011 when she was wrongfully removed from the country of her habitual residence by her mother.  The petitioner and respondent had litigated the issue of custody of their daughter and had been sharing her care equally by virtue of an order of their local court dated 10 September 2009.  On discovering that the respondent had abducted the child, the petitioner took all reasonable steps to ascertain her whereabouts.  He suspected she had gone to Brazil, a country in which she had lived for some years as a child.  Between January 2012 and May 2016 he was unable to locate the respondent and IAR, despite having requested information about her whereabouts from a number of countries, including the United Kingdom.  In May 2016 the respondent was located by the English central authority at an address in Hamilton, where she has resided for some years.  There was a delay thereafter in the transmission from the Portuguese central authority to the English central authority of the petitioner’s application for the return of the child.   In October 2016 the English central authority received the application and transmitted it to the Scottish central authority during the same month.   

[2]        It is not in dispute that the petitioner has rights of custody in respect of IAR in terms of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, incorporated into domestic law as Schedule 1 to the Child Abduction and Custody Act 1985.  Nor is it disputed that IAR was at the time of her abduction habitually resident in Portugal.  The respondent concedes that she was wrongfully removed from the country of her habitual residence in a clandestine manner.  In these circumstances the petitioner seeks an order for the return of IAR to Portugal in terms of the said Act of 1985. 

[3]        These proceedings were initiated by first orders granted by the Lord Ordinary on 22 November 2016.  Accordingly, a period of almost five years passed between the wrongful removal and the raising of the petition for return.  In those circumstances the respondent relies, inter alia, on the terms of Article 12 of the Hague Convention which provides an exception to the requirement to order the return of a child removed from his or her habitual resident forthwith if it is demonstrated that that child is now settled in his or her new environment.  The respondent relies also on the provisions of Article 13 of the convention.  Two separate defences to a return to the country of habitual residence are raised by her under that Article.  First, under Article 13b it is contended that there is a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation and secondly and separately that the child IAR objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. 

[4]        In relation to the issues of settlement and objection to return a remit was made on 30 November 2016 to a child psychologist to enquire into and report to the court on IAR’s views for assistance in the court’s determination.  Dr Katherine Edward was instructed by the parties and her report now forms number 18 of process.  In addition to the benefit of that report, I had before me also affidavit evidence from the petitioner, the respondent and a number of other witnesses, together with a large volume of documentary material.  The basic facts of the wrongful retention are undisputed and in many ways the petitioner was not in a position to contest the facts stated in relation to the current circumstances of the child, having not seen her since September 2011.  Standing the concessions made about rights of custody, habitual residence and wrongful retention, it was agreed that the onus was on the respondent to establish settlement and/or either of the Article 13 defences and I heard submissions on behalf of the respondent first.  Unsurprisingly, there was a large measure of agreement in relation to the applicable law and I will summarise that in relation to each of the three issues first, before summarising each party’s argument.

 

(i)   Article12 and Settlement
[5]        Article 12 of the Hague Convention is in the following terms:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

 

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

 

The interpretation of Article 12 has been the subject of authoritative discussion both in this jurisdiction and in England.  Reference was made to the Inner House decisions in Perrin v Perrin 1994 SC 45, Soucie v Soucie 1995 SC 134 and NJC v NPC 2008 SC 571.  It is also important to understand that if it is shown that a child has become settled for the purposes of Article 12 the court then moves to a second stage of discretion and decides whether or not to return that child within the convention procedures.  In Soucie v Soucie the Extra Division identified the correct approach as follows:

“…we consider that the proper question is whether the child is so settled in her new environment that the court would be justified in disregarding an otherwise mandatory requirement to have the child returned.  This is another way of saying that the interest of the child in not being uprooted is so cogent that it outweighs the primary purpose of the convention, namely the return of the child to the proper jurisdiction so that the child’s future may be determined in the appropriate place.  …this is not just a balancing exercise between the requirements of the convention on the one hand and the interests of the child on the other.  Such a balancing exercise may be appropriate when considering the discretionary powers of the court under article 18, which will come into play if the proviso to article 12 is established or indeed if any of the matters contained in article 13 are established.  Even in discretionary cases it has been said that it is for the court to conduct the necessary balancing exercise between what would otherwise be required by the convention and the interests of the children, but only where it can clearly be shown that the interests of the children require it, should the court refuse to order their return.”

 

In Perrin v Perrin the Extra Division cited with approval a passage from the judgment of Bracewell J in the case of R N (Minors) (Abduction) [1991] 1 FLR 413 at 418 which is in the following terms:

“What factors does the new environment encompass?  The word ‘new’ is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother which has always existed in a close, loving attachment, that can only be relevant in so far as it impinges on the new surroundings.  Every case must depend on its own peculiar facts…whether or not the mother herself is settled in the UK is not a relevant factor.  It is not the welfare test that I am concerned with in applying article 12.”

 

The more recent case of NJC v NPC 2008 SC 571 concerned a father who had taken his children from France and had moved around avoiding them being returned through concealment and subterfuge.  There the children had been in Scotland for well over a year before the Petition was brought, but the clandestine nature of their presence here militated against a conclusion that they had become settled.  It is noteworthy that the Extra Division in NJC cited with approval the English decision of Cannon v Cannon [2005] 1 WLR 32 where it was held that, when determining whether a child was “settled in its new environment” for the purposes of Article 12 of the convention, it was necessary to have regard to the emotional and psychological elements of settlement as well as the physical characteristics.   

[6]        Finally, the terms of Article 11 of Council Regulation  2201/2003 (hereinafter “Brussels II bis”) requires that “… when applying Article 12 and 13 of the 1980 Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.” 

[7]        Ms Gilchrist for the respondent submitted that on the facts of this case there was ample evidence for a finding that the child IAR is settled in Scotland in terms of Article 12 and that the consequent discretion not to return her should be exercised so that no order for her return to Portugal should be made.  The respondent’s affidavit number 7/1 of process was referred to.  It was submitted that the respondent has lived openly in Scotland for five years.  This was a longer period than in any of the reported decisions.  Unlike the cases of Cannon and NJC the respondent had not lived a clandestine, nomadic and transient life with IAR.   Counsel for the respondent also urged me to place considerable reliance on a significant number of documents the she contended were supportive of her position that she has lived openly in Hamilton for five years.  These included but were not limited to:  documentation from HMRC about a claim for tax credits and the respondent’s wok record in this country, correspondence from DWP about a claim for jobseeker’s allowance, documentation from DVLA and correspondence with the local authority about council tax and housing benefit, tenancy agreements, electoral roll documents and medical records.  The respondent and IAR had been living at the same address since July 2012.  Neither the respondent nor IAR has changed her name or appearance, the child having been registered at the two primary schools she has attended with her full birth name.  The respondent’s positon is that the petitioner could easily have found her by searching the electoral roll electronically using only her name.  In June 2012 in a report of a psychological assessment of the petitioner (No 6/12 of process) there was reference to the petitioner having told a psychologist that he had information suggesting the respondent was in Switzerland or Scotland. 

[8]        Counsel relied also on an Affidavit (7/2 of process) from EF, the head mistress of the school which IAR attends.  EF has known IAR at both the primary schools the child has attended since coming to Scotland as she was a teacher at the first school and is now head of the child’s current school.  She states that when she met IAR on 31 January 2012, the child presented initially as aggressive and rather difficult.  In the weeks that followed IAR struggled as she didn’t speak English and was often in trouble for being involved in violent incidents in the playground where she was seen to hit, scratch and grab other children.  EF recalls that IAR was removed from the first school with no prior warning, although she subsequently ascertained that the respondent and the child had moved house.  Some years later, in August 2015 when she was appointed head teacher of the second school, she encountered IAR again.  She was struck by how different the child appeared.  She had grown her hair, she spoke English and she had many friends at school.  EF has continued to have contact with IAR at school, where the child has expressed positive aspirations about her life in Scotland.  Ms Gilchrist acknowledged that EF also remarks that at the first school the respondent refused to give permission for IAR’s photograph to be taken by the school, but pointed out that EF herself said that this was not so unusual.  In terms of achievement, IAR is doing well, although is behind in literacy and it is suspected that she may have dyslexia.  She has no ability to read or write in Portuguese.  An Affidavit of a solicitor in Portugal ( No 7/43 of process) suggests that she would have to repeat the early school years there as she has officially been put back a year for each school year that has passed, given her non-attendance.

[9]        IAR has developed a number of hobbies and interests in Scotland.  She takes swimming lessons and is enrolled in Taekwon-Do.  She plays football and attends an after school club.  She has many friends and loves living in this country.  She was clear in telling the child psychologist that “..this [Scotland] is my home.”  She is settled both physically and emotionally and it would be to her significant detriment to remove her from Scotland. 

[10]      For the petitioner, Mr Hayhow submitted that a number of factors should be taken into account in deciding whether or not the respondent could truly be said to have established that IAR is now settled in this jurisdiction.  It was simply not relevant that the respondent herself had settled to some degree in Scotland, as illustrated by the various documents referred to by her Counsel.  Accessing the NHS, having a bank account and working part time were necessary and expected features of having spent a considerable period of time here.  It was important to recall that all of the time spent in this jurisdiction was clandestine. 

[11]      Mr Hayhow accepted that IAR might be regarded as having an emotional tie to this country, as evidenced by her statements to Dr Edward.  However, in terms of the physical aspects of her life – from swimming lessons to playing football, these are merely the ordinary activities one would expect any child of her age to undertake, wherever situated.  All such activities are also available in Portugal where they can be undertaken openly and not against the background of concealment and subterfuge that has existed here.  The idea that engagement in such activities demonstrates that the child’s best interests require her to remain here must be examined critically.  IAR’s activities are simply an adjunct of the respondent’s clandestine residence in this jurisdiction as opposed to strong evidence of her settlement.  Given the high level of physical and emotional settlement required before the court should exercise a discretion not to return a child, the respondent had not shown that discretion should be exercised in favour of refusing the order.  It would be wrong to refuse to return a child on the basis that she goes swimming and plays football. 

[12]      Counsel submitted further that at the stage of exercising discretion, the court required to weigh in the balance the importance of the convention and the need to establish that those who abduct children from their parents, causing anguish and distress to the parent and family left behind, should not be allowed to benefit from their wrongdoing.  This was an extreme case in terms of the amount of time the respondent had managed to conceal the child, but that should not be regarded as a factor militating against return. 

 

(ii)   Article 13b and the Grave Risk of Physical or Psychological Harm Defence
[13]      Article 13 of the convention provides, inter alia, as follows:

“Notwithstanding the provisions of the preceding article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

(b)        there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

 

It should be noted that section 1(3) of the 1985 Act now provides that the provisions of the convention are all now subject to Article 60 of Brussels II bis.   In relation to an Article 13 defence based on grave risk, the significance of that is that Article 11.4 of Brussels II bis provides that:

“A court cannot refuse to return a child on the basis of article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.” 

 

However, it is indisputably for the respondent first to establish grave risk of physical or psychological harm on a return before any need for protective measures can arise.   

[14]      Recent guidance on a defence under Article 13b of the convention can be found in the decision of the UK Supreme Court in the case of In Re E (Children) (Abduction);  Custody Appeal [2012] 1 AC 144.   Baroness Hale and Lord Wilson, at paragraph 34 of that judgment made clear that the burden of proof in an Article 13 defence lies with the person opposing the child’s return.  In relation to the specifics of this type of defence they stated:

“…the risk to the child must be “grave”.  It is not enough, as it is in other contexts such as asylum, that the risk be “real”.  It must have reached a level of seriousness as to be characterised as “grave”……

 

….the words ‘physical or psychological harm’ are not qualified.  However, they do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’ (emphasis supplied).  As was said in Re D [2007] 1 AC 619, para 52, ‘intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate.’  Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation.  Every child has to put up with a certain amount of rough and tumble, discomfort and distress.  It is part of growing up.  But there are some things which it is not reasonable to expect a child to tolerate.  Among these, of course, are physical or psychological abuse or neglect of the child herself.  Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent…if there is such a risk, the source of it is irrelevant:  e.g., where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.  “

 

While the case of In Re E might have impacted on what things might create a grave risk for a child, the strength of the test that must be satisfied to succeed under Article 13b remains as exacting as ever.  Clear and compelling evidence of a grave risk of substantial harm is required, something much more than the risk inherent in any unwelcome return to the country of habitual residence.  It has also long been established that in the absence of compelling  evidence to establish that the courts in the requesting country do not have the power to protect the child, the courts of the requested county should assume that they will be able to  do so – C v C [1989] 1 WLR 654. 

[15]      In advancing an argument that there was such compelling evidence in this case counsel for the respondent relied again on the respondent’s Affidavit No 7/1 of process, together with Affidavits from her sister (No 7/3 of process, her brother ( No 7/4 of process), her father (No 7/6 of process) a friend (No 7/7 of process) and her employer in Portugal ( No 7/35 of process).  Various allegations are made about the petitioner’s behaviour towards the respondent when she was in Portugal.  In essence, the respondent claims that the petitioner was a violent and aggressive man who abuses alcohol and illicit substances.  It was pointed out that she has been consistent in her position that the petitioner was abusive to her both during their relationship and after it terminated.  She had reported that abuse to organisations such as the Citizens Advice Bureau and the Ethnic Minorities Law Centre in this country (Nos 7/38, 7/40 and 7/31 of process). 

[16]      When in Portugal and during her pregnancy with IAR, the respondent had been hospitalised due to a concerning loss of amniotic fluid.  Her position now is that she did not tell the hospital staff how she came by the injury that caused the said loss but that it was an assault by the petitioner.  She claims also that domestic abuse against women is not taken seriously in Portugal and relies on an academic paper about that issue, No 7/9 of process.  Further, it appeared from the translated version of a report of a hospital attendance by IAR on 5 September 2011 that the petitioner had admitted smacking her.  She had presented at hospital with bruising to her right buttock.  There was further evidence of corporal punishment being inflicted on the child by the petitioner.  In the psychological assessment carried out on 6 December 2011 (report No 6/11 of process) the child is reported as stating that she “…prefers to live with her mother because she can sleep with her, because her mother plays with her more and doesn’t smack, she only shouts.” In the same report, the author narrates that the petitioner had carried out an act of physical punishment on the child, namely a smack on the legs.  More recently, IAR told Dr Edward that her paternal grandmother had beaten her and that her father cut her hair off.  She is frightened that he will do so again.  Accordingly there was a real risk of physical harm on a return to Portugal.  Dr Edward’s report expresses the view (at page 19) that IAR would likely experience significant anxiety and distress at the prospect of such a return and might even endanger herself through efforts to return to her mother.  This supported a contention that the child would also suffer psychological harm if she is returned. 

[17]      The respondent claims to have Brazilian heritage and states that she has experienced prejudice in Portugal as a result.  A working paper on the issue of racially motivated abuse against Brazilian immigrants in Portuguese society (No 7/41 of process) was relied on in support of this issue.  Ms Gilchrist contended also that the documentation produced by the petitioner in this case was of little value and at best neutral.  The Affidavit of his sister offered little assistance in relation to the contentious issues, no Affidavit from the petitioner’s partner had been produced and the nursery worker (statement No 6/15 of process) and pre-school teacher (statement No 6/16 of process) could speak only to the child’s circumstances when she was up to five years old. 

[18]      Counsel for the petitioner submitted that this was not a case in which any grave risk to the child could be identified.  The background circumstances were that the petitioner had been awarded joint custody of IAR by the Portuguese court.  The arrangements for the child’s care had been determined after contested proceedings in which both parties had been legally represented and evidence on the child’s best interests had been gathered, not just in 2009 but again in 2011.  He relied on documents in relation to the Portuguese action, No 6/5 of process, together with the petitioner’s Affidavit and supplementary Affidavit, Nos 6/1 and 6/14 of process.  It was noteworthy that the respondent had stopped making the child available to the petitioner as required by the court order in September 2011.  The matter had been dealt with by the court, which had found against the respondent and ordered her to pay costs.  The respondent’s sister was found not to be credible or impartial in that dispute (No 6/5 at page 24).  Perhaps of even greater significance, the court in Portugal had the benefit of expert evidence about the relationship between the petitioner and the child immediately prior to the abduction.  That report, No 6/11 of process, includes a narration of the respondent’s own family history.  She appeared to have been abducted by her own father when she was young, a significant matter given that her father claims in his Affidavit (No 7/6 of process at para 10) that it was his idea that the respondent remove IAR from Portugal.  The report had suggested a psychological assessment of both parties.  The petitioner had submitted to that (No 6/12 of process), the respondent had not as she had by then left the country. 

[19]      Mr Hayhow submitted that on the basis of the objectively obtained material there was no suggestion that the petitioner had anything other than a close, loving and supportive relationship with his daughter.  There is no independent support for the respondent’s allegations.  Reliance was placed on the Affidavits of IAR’s local nursery co-ordinator and pre-school teacher, Nos 6/15 and 6/16 of process. 

[20]      It was following the court order in 2009 that a complaint of domestic violence was made against the petitioner.  The petitioner’s response is at paragraphs 13 and 14 of his Affidavit.  His position is that he was charged on false allegations that were ultimately not spoken to by the respondent, who had made the complaint in bad faith, her motive having been to revoke the shared care order in relation to IAR.  A certificate confirming that the petitioner has no criminals record was produced – No 6/14 of process.  While the respondent claims she told the court in 2011 that she had been assaulted there is no record of that in the proceedings.  The incontestable position was that the Portuguese court had not altered the shared care arrangement. 

[21]      Mr Hayhow submitted that the respondent’s complaints about the various organs of the Portuguese state letting her down were not credible.  It was inherently improbable that the respondent was somehow unable to access justice because she had a Brazilian accent.  Her claim to have Brazilian heritage was at best an exaggeration: both her parents were Portuguese and she had lived in Brazil only because she was abducted there by her father.  The respondent’s supporting Affidavits should be treated with caution.  There was a striking similarity in the language used to describe an alleged violent incident in 2006 – both the respondent and her sister claimed the petitioner had his hand around the respondent’s neck while holding the baby in his left hand “…as you would a puppy or a kitten”.  This was suggestive of collaboration.  Various other criticisms of the Affidavits from the respondent’s family members were made and it was contended that they were wholly partial and lacked credibility.  The respondent’s brother, in his Affidavit No 7/4 of process, makes a bizarre allegation ( at paragraph 15) that in February 2012 he was the victim of an assault at the hands of the petitioner, the petitioner’s brother and sister and about three other men, all wearing carnival costumes but not masks.  There is no supporting evidence of this having taken place.  Importantly, it appears to be an incident referred to by the child when she spoke to Dr Edward, but on the respondent’s brother’s own account it took place quite some time after the respondent and IAR had left Portugal.  On the basis of such unsubstantiated allegations and where the onus was on the respondent, no finding that the petitioner was violent could be made.

[22]      In relation to the allegation that the petitioner assaulted IAR, his response was that the child had sustained the usual bumps and bruises of any five year old child and that she was prone to bruising as a result of falls caused by her hip dysphasia.  It should be noted that even on the respondent’s own account, the cause of any marks on the child did not appear to be established.  The petitioner denies this uncorroborated allegation.  The respondent has now also made allegations that the child was ill treated by the petitioner’s partner, with whom he has lived for some years.  There is no objective support for such an allegation, which has been made for the first time in these proceedings. 

[23]      Counsel for the petitioner submitted that the whole issue of “grave risk” had to be examined in the context of the circumstances into which the child would be placed on a return to Portugal.  The petitioner’s intention is that IAR would live with him while he makes an application to the court for sole custody of her.  The respondent would be able to engage in that process and it was apparent from the court documents available that the Portuguese court would determine the matter on the basis of what is best for the child and is likely to include the securing of background reports.  While the respondent has been charged with kidnap of the child, the criminal proceedings have been suspended due to her absence.  She has also been found in contempt of court.  The petitioner’s understanding is that she is not likely to be detained pending any trial in the criminal proceedings. 

[24]      The petitioner has set out in detail his current home circumstances, where a bright and airy bedroom is available for the child – paras 28-32 of his Affidavit and photographs No 6/17 of process.   She retains a registered place at the local school and Dr Edward notes that she speaks Portuguese fluently, albeit that she cannot write in her native language.  The petitioner acknowledges that some psychological support will be required on the child’s return and that contact between her and the respondent may continue to which he has no objection so long as there is no abduction risk.  In essence, what IAR will face on a return is the type of distress and disruption contemplated by the Convention as an adjustment, but not something she could not be expected to bear.  While Dr Edward (at page 19) mentions the potential for the child to endanger herself through efforts to return to her mother, this was in the context of a claim that she might run away and there was no reason to conclude that the petitioner would be unable to support her in overcoming the false perception of him that the mother has encouraged, such that she would settle with him.  Ultimately, it was submitted that this case fell far short of the strength of evidence required to establish an Article 13b defence. 

 

(iii)   The Children’s Objections to a Return – Article 13
[25]      Article 13 provides, in the following terms, a separate basis on which return might be refused:

“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age an age and degree of maturity at which it is appropriate to take account of its views.”

 

That provision is also now subject to Article 11 of Brussels II bis.  Article 11.2 of the council regulation provides as follows:

“When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his age or degree of maturity.”

 

The leading case on this issue has for some years been that of In Re M and another (Children) (Abduction): Rights of Custody [2008] 1 AC 1288.  At paragraph 46 Baroness Hale expressed the following view:

“In child’s objections cases, the range of considerations may be even wider than those in other exceptions.  The exception itself is brought into play when only two conditions are met:  first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views.  These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views.  Taking account does not mean that those views are always determinative or even presumptively so.  Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general convention considerations referred to earlier.  The older the child, the greater the weight that her objections are likely to carry.  But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.”

 

In the more recent decision of In re M and others (Children) (Abduction: Child’s Objections) [2016] Fam 1, Black LJ clarified that the first or gateway stage in relation to this defence is confined to a relatively straightforward and fairly robust examination of whether the child objects to being retuned and has attained an age and maturity at which it is appropriate to take her views into account.  If that is satisfied, one moves to the second, discretionary stage.  In that context, the child’s views are not determinative but one of the factors to be considered alongside other welfare considerations and various aspects of Convention policy.  It was noted (at para 121) that the child’s feelings were an important factor in the discretionary equation.

[26]      Counsel for the respondent submitted that Dr Edward’s report provided cogent evidence that IAR had attained an age and degree of maturity at which her views should be taken into account and that she has clearly stated an objection to a return to Portugal.  It seems likely that a return to Portugal involves a return to the care of her father.   Discretion should then be exercised in favour of refusing to return her.  She considers herself Scottish, speaks with a Scottish accent and is settled here.  She is happy at school, with no sense of attachment to Portugal.  She is happy in the care of her mother.  She is worried that if returned she would be placed in a school class with much younger pupils.  She is being assessed for dyslexia and is behind her peers in literacy skills, something of real concern to her.  She shared her fears with Dr Edward.  She cannot write in Portuguese and although she and her mother converse in Portuguese they are both now fluent English speakers, unlike her father and his family, who are now strangers to her and who speak no English.  The petitioner’s level of education was “6^th year – Basic” (6/12 at page 12), a level now exceeded by the child.  IAR dreams of being an architect, something that would appear impossible should she be returned to Portugal against her will.  She has no friends or relatives in Portugal on whom she feels she could rely. 

[27]      Ms Gilchrist pointed out also that IAR has no sense of loss or sadness at the absence of any contact with her father.  She has no attachment to him or his family and is fearful of them.  She has said that she will run away if returned.  Dr Edward’s opinion was to the effect that IAR would respond very negatively to being returned to Portugal against her will and would experience significant anxiety and distress (No 18 of process, page 19).  Dr Edward has taken seriously the child’s statement that she would run away and is concerned that she may come to harm in her attempt to be with her mother.  It was acknowledged that Dr Edward had concluded that IAR’s views have not been formed independently of the influence of the respondent.  However, her views, including her fear of the petitioner, were genuinely held.  This was more important than whether or not her views were mistaken.  The strength of her views is unaffected by any test of whether her recollection is correct.  If she is correct in her position that she was mistreated by her father, she would face difficulties on a return.

[28]      Mr Hayhow accepted that, subject to the issue of the weight to be attached to her views, IAR had stated an objection to a return to Portugal and that she presented to Dr Edward as “…somewhat more mature than the average girl of 10 years”.  (No 18 of process, page 18).  Accordingly the gateway test was met and the matter was one for the court’s discretion.  Not only were IAR’s views not determinative, but, at 10 years old she was towards the bottom of the range of ages at which her views would be taken into account.  More importantly, the information she gave to Dr Edward clearly came largely from the respondent who had given her a very negative view of the petitioner.  The respondent’s portrayal of the petitioner as an abusive person was not new.  That was clear from what the child had said to the Portuguese court appointed psychologist (report No 6/11 of process) and to Dr Edward.  The mother’s negative statements appear to have achieved their desired effect, namely to control the views of the child.  Most of IAR’s views were based on misconceptions about her father’s behaviour or about what would occur on a return to Portugal.  Examples included her understanding that she would have to start school again at primary 1 stage in Portugal, her view that she would not be able see her mother following a return, that nobody in her father’s family likes her and that her father had tried to find her simply to “ruin” her mother’s life – pages 9 and 10 of No 18 of process.  A further telling example of the mother’s influence having led the child to an erroneous position was at page 6-7 of Dr Edward’s report, where it is recorded that IAR “…believes that the court in Portugal would be on her father’s “side” and she would have to live with him”.  Her stated preference for Scotland had to be seen against this background of manipulation and influence and accordingly her views should be given little if any weight.  In exercising discretion the factors referred to in relation to settlement were equally relevant. 

 

Discussion

[29]      The starting point in this case, as with every case brought under the Child Abduction and Custody Act 1985 is the requirement to return a child wrongfully removed from the country of her habitual residence to that jurisdiction so that it can determine any dispute relating to her care.  In this case there is no dispute that the respondent wrongfully removed IAR from Portugal where she had been cared for equally by her two parents for some time prior to that removal.  The petitioner has rights of custody that he was actively exercising until prevented by the mother from so doing.  The Affidavits of the respondent and her family indicate that this was an abduction designed to achieve the aim that it was thought could not be achieved through the Portuguese court process, namely to excise the petitioner from his daughter’s life.  This is in some ways a paradigm case of the type of abduction the Convention was designed to address.  However, the passage of time since the respondent wrongly removed IAR from her home country is so significant that different considerations additional to the aim of a prompt return to the county of habitual residence require to be addressed.  I will discuss these in the order in which they were presented by counsel for the respondent. 

 

(i)   Settlement

[30]      There was no dispute about the correct approach  in law to cases in which it is argued, in terms of Article 12 of the Convention that a child has settled into her new environment, all as set out in paragraphs [5] to [6] above.  The respondent has lodged a considerable volume of material about the essential physical aspects of IAR’s environment in Scotland, including details of her accommodation, schooling, friends and hobbies.  I have considered that material carefully to assess its’ quality and to determine whether this child is sufficiently well settled here to override the duty to return her to her country of origin.  I have found the views of the head teacher, EF, who was involved with IAR shortly after she came to Scotland and then more recently and of Dr Edward to be most instructive.  Their input supports without question a conclusion that IAR, after a challenging start, is now well settled at school here and enjoying life in this country.  Two matters that are in my view particularly significant in terms of this aspect of the case are IAR’s own feeling of belonging here,  that Scotland is her country (Dr Edward’s report, page 6) and her inability to read or write in the Portuguese language.  Her formal education has been entirely in the English language.  While that is not a barrier to a return to Portugal, it is indicative of a degree of settlement that is in contrast to the transient and nomadic existence on which the father embarked with his children in the case of NJC v NPC 2008 SC 571. 

[31]      This child has now spent as much of her life in Scotland as she did in Portugal.  In considering whether she has settled here, both practically and emotionally, the circumstances of her coming to this country are also relevant.  In particular, if her time here has been transient and clandestine in nature that would have a material bearing on the ability to settle for the purpose of Article 12.  It is clear from the documents lodged that the respondent has not involved the child in an itinerant lifestyle since their arrival in this country.  She and the child have been resident in their current home for some years.  The child has attended two schools, changing only when there was a change of accommodation, but all in the same town in the West of Scotland.  The respondent has worked, claimed certain benefits, registered on the electoral roll and registered the child at school using her full birth name.  That she hoped and intended that she and IAR would not be traced by the respondent is not in doubt.  However, the single step she took to avoid detection was to refuse to have IAR’s photograph taken for the school website.  From the perspective of assessing whether the child has settled into her new environment, this information is far from determinative.  As the head teacher EF confirms in her Affidavit, ( No 7/2 of process, para 3), some other parents take that step, albeit perhaps for different reasons.  EF noted the mother’s refusal to have the child’s photograph taken at the time, but was not made aware until some years later what was behind it.  There is nothing in the available information to suggest that IAR was conscious of living a secretive existence.  She has engaged fully in life here.  Counsel for the petitioner contended that it could hardly be sufficient to refuse a return that a child went swimming and played football here and I acknowledge that.  However, undertaking the same hobbies and activities as one’s peers forms part of integration into an environment.  From a different perspective, if one asked whether there was anything in IAR’s daily life and activities suggestive of an unsettled existence, the question would have to be answered in the negative.  I conclude that the physical and emotional characteristics of settlement are both present in this case.  I require then to move to the stage of exercising my discretion in considering whether still to return the child to Portugal.  I will do so after considering the other two defences stated. 

 

(ii)   Grave Risk of Physical or Psychological Harm
[32]      The authorities referred to at paragraph [4] above make clear that something much more than the inevitable upset associated with a child’s return to the requesting country  is required before the  “grave risk” defence  under Article 13 can be established.  There are directly contradictory accounts in the various Affidavits lodged of what occurred between the parties, in particular in relation to the respondent’s allegation that the petitioner was violent to her and physically chastised the child.  In D v D 2002 SC 33 the Inner House made clear (at para 8) that no conclusions can be drawn on the veracity of allegations in contradictory accounts in Affidavits.  While there is some extraneous evidence, such as the documentation available to the court in Portugal and a record of a hospital admission, I find that those reports are insufficient to support a conclusion that the petitioner acted in the manner alleged by the respondent.  In many respects the documents available to the court in Portugal support the petitioner’s position that his relationship with IAR was close, loving and affectionate prior to her removal and that the respondent had been attempting to disrupt the shared care arrangement for some time (see No 6/11 of process, pages 3, 4 and 5).  Accordingly, I will proceed on the basis that, while the respondent has made certain allegations, those have either yet to be tested or have been raised and rejected as unfounded or immaterial to the issue of child welfare by the court in Portugal.  I acknowledge that many of the criticisms made by Mr Hayhow in relation to the Affidavits of the respondent and her family appear to have some force, but as indicated, I am unable to reach any firm conclusion on the disputed issues they raise. 

[33]      The respondent’s claims that the child will be at risk if she is returned to the petitioner must be understood in the context of IAR having been the subject of contested litigation about the arrangements for her care when she was a small child.  The court instructed psychological assessment of the child No 6/11 of process is so proximate to the date of her removal that it provides the best independent account of what was going on in the child’s life at that time.  The main thrust of the report is that IAR was comfortable with the shared care arrangement but was being exposed to a worrying level of parental conflict, resulting in a concern about “divided loyalties”.  The eminently sensible conclusion was that a psychological evaluation of both parents should be carried out, a plan thwarted by the respondent’s actions.  There is nothing in the documentation from Portugal to suggest that the courts there would not deal appropriately with any allegations that the child might be at risk in the care of her father.  Of course, her now undivided loyalty to her mother alone would result in considerable distress to IAR were she returned to Portugal in circumstances where she was not to be in contact with her mother.  Had I concluded that the respondent had established that IAR would be at grave risk of physical or psychological harm on a return, I would have considered whether appropriate protective measures could be put in place to avoid or at least mitigate any such risk.  However, I do not regard this as a case where the stringent requirements of the “grave risk” defence have been made out and I would have granted the prayer of the petition if the “grave risk” defence had been the only one put forward. 

 

(iii)   Objection to Return

[34]      The argument in this section related primarily to the weight to be attached to the views expressed by IAR to Dr Edward.  She is old enough and mature enough to express a view and has stated a number of very clear objections to returning to Portugal.  Dr Edward reports  her as stating that she would be ”sad”, “upset” and “angry” if she had to go back to Portugal”.  Accordingly, her objection and stated views cannot be ignored.  The problem is that her stated negative view of her father and of a return to Portugal is undoubtedly the product, in no small part, of the influence of the respondent to whom she is now particularly close.  Dr Edward concludes that;-

“… (IAR’s) views could not be regarded as having been formed entirely independently from her mother.  In addition to the negative events she states she experienced, her view has been influenced by what she has learnt about her father and his family from others, including her mother and maternal family.”  (page 20)

 

Of course, whether or not IAR’s negative views of her father are justified by events that actually occurred does not reduce her strength of feeling.  The source of the negative information she has been given is a concern, but it does not render her views of no value.  The child’s stated and seemingly genuine objection is sufficient, given her age and maturity, to examine it further in the context of the discretionary stage to which I now turn.

 

(iv)   Exercise of Discretion

[35]      For the reasons I have already given, I am of the view that there is a basis in the evidence for two of the defences to a return in this case, namely settlement under Article 12 and objection to a return under Article 13.  I must then exercise a discretion at large before reaching a decision on the order sought.  Importantly, the objectives of the Convention are to be considered at this stage along with, but not taking precedence over, all other relevant factors.  The child in this case has been living in Scotland since January 2012 and I have found her to be settled here.  This is not a case where the ability to invoke the settlement defence  arose shortly before the petition was raised, it could have been raised after only a year of residence here and some five years have elapsed.  That is a factor that weighs heavily in the balance.  So many milestones have been met by IAR during her years in Scotland.  She has started formal education, become fluent in English, made friends and developed interests.  Although she remains Portuguese, there would be considerable complications were she to be returned to Portugal now.  While I have concluded that her anticipated distress on a return is insufficient to amount a grave risk to her well-being in terms of Article 13, it is something I take into account in the exercise of my discretion.  The disruption to IAR’s settled life and education would be considerable and the circumstances in which her mother could return to Portugal with regular contact to her daughter are uncertain, standing the criminal charges against her.  It is indisputable that IAR’s emotional attachment is almost exclusively to her mother.  Her objection to a return is not, however, restricted to a desire to remain with the respondent.  She articulated other reasons for objecting to a return to Dr Edward.  Having stated that Scotland is her country she “spoke about how she does not know how to write in Portuguese.  She was very clear and adamant that she wants to stay in Scotland because she will not find friends in Portugal and she remembers ‘hating’ nursery there.” (No 18 of process, at page 6).  She went on to express her concern that she would have to start primary school again.  As already indicated, her fears in that respect may be unfounded but they appear genuine and in my view are indicative of some level of understanding about the educational hurdles she would undoubtedly face at an important stage in her development on a return.  There is the additional complication of her being assessed for a possible specific learning difficulty, dyslexia.  In my view, IAR’s strongly expressed concerns about all of this are of considerable importance in weighing up the kind of welfare considerations relevant to the exercise of discretion.  I conclude that to require this ten year old girl to leave her home of several years and return to what she now feels is a foreign country, when the prospect of that makes her feel sad, upset and angry would be contrary to her best interests.  IAR’s strongly held views, coupled with the length of time she has been settled here, lead to those interests prevailing when balanced against  the primary purpose of the Convention. 

[36]      It will have been hard for the petitioner to read that his daughter currently has no sense of loss or sadness at having left him.  This may be largely a consequence of the respondent failing to depict him in any positive light to her daughter.  However, ordering the reintroduction of father and daughter through the instigation of contact is not something that is open to me in these proceedings.  Article 19 of the Convention prevents the making of such an order until a decision on this petition has been made.  The sole issue for my determination in these proceeding is whether to grant an order for IAR’s return to Portugal.  For the reasons given above, I have decided to exercise my discretion in favour of refusing so to order.  The situation created by the respondent has caused a huge rift between the petitioner and his daughter.  I hope that he can come to terms with her settlement in Scotland and make appropriate and sensitive overtures towards the healing of that rift. 

 

Disposal

[37]      I will sustain the first and third pleas in law for the respondent and refuse the prayer of the petition, reserving meantime all questions of expenses.