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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> C, PETITION OF AGAINST N [2018] ScotCS CSIH_34 (02 May 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_34.html
Cite as: [2018] CSIH 34, [2018] ScotCS CSIH_34
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 34
P902/17
Lady Paton
Lord Menzies
Lord Malcolm
OPINION OF LADY PATON
in the petition
of
C
Petitioner
against
N
Respondent
for an order under the Child Abduction and Custody Act 1985
Petitioner: Cartwright; Lindsays
Respondent: Malcolm; MHD Law LLP
2 May 2018
Child abduction and the Hague Convention
[1] I agree with the opinion of Lord Malcolm, and have only a few observations to add.
[2] In paragraph [25] of his opinion, the Lord Ordinary addressed the question whether
“the [children are] now settled in [their] new environment” (article 12(2) of the Convention
on the Civil Aspects of International Child Abduction - the Hague Convention -
incorporated into our law by the Child Abduction and Custody Act 1985). In so doing, he
Page 2 ⇓
2
referred to Soucie v Soucie 1995 SC 134, and paraphrased the guidance given by the Inner
House as follows:
“[The Inner House] emphasised the balance that a court required to strike between
the interests of a child not being uprooted from its community of habitual residence
and cases where a clear need to remain where it had become settled could be
established [emphases added]”.
[3] This appears to be an inadvertently erroneous paraphrase, for two reasons.
[4] First, at the stage of an article 12(2) issue, the court is not being asked whether a child
should be “uprooted from its community of habitual residence” (in this case, Italy). The
question is whether a child wrongfully removed from its country of habitual residence
(Italy) has become settled in its new environment (in this case, Scotland) to such an extent
that
“ … [the settlement] overrides the otherwise clear duty of the court to order the return
of the child (Soucie page 139)”.
The Inner House emphasised that such a question is always one of degree, involving inter alia
the age of the child and, if relevant (bearing in mind that age), factors such as those listed by
Bracewell J in N (Minors) (Abduction) [1991] 1 FLR 413 at page 418. Counsel for the petitioner
submitted to this court that the Lord Ordinary’s opinion, read properly and as a whole,
demonstrated that there had been no misdirection in paragraph [25]. However it seems to me
that the erroneous paraphrasing of Soucie may explain why the Lord Ordinary appeared to
place little weight on factors pointing to a cogent case of settlement by the two children in
Scotland, and why considerable weight was given to the children’s primary culture and social
connection, the identity of the country in which they had lived most of their lives, their
current lack of contact with relatives in that country, and their lack of any previous
connection with Scotland. I therefore consider that the paraphrase adopted by the
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3
Lord Ordinary amounted to a misdirection in law which affected the assessment of the
circumstances of the case.
[5] Secondly, the paraphrase contains a reference to “a clear need to remain” in the
country where the child has become settled. These words are not to be found in article 12(2).
The words imply an element of necessity, which may result in a higher test to be satisfied by
a parent such as the respondent. Again therefore there has, in my opinion, been a
misdirection in law which has affected the assessment of the circumstances of the case.
[6] Two further matters are worth noting: the question of deception or subterfuge on
the part of the respondent; and the extent to which young children might be able to
understand the purpose of a return order under the Hague Convention.
[7] Concealment of the children’s true whereabouts may, in many cases, amount to
significant deception militating against the establishment of settlement in a new
environment in terms of article 12(2). However in the present case, any concealment came to
an end in December 2016 (well within the 12 month period) when the respondent’s sister
gave the petitioner the children’s address in Scotland. Despite receiving that information,
the petitioner did not commence proceedings in the Court of Session until 20 September
2017, a date after the expiry of the 12 month period. I therefore agree with Lord Malcolm
that any deception or subterfuge in the present case was not a significant matter.
[8] As for an understanding of the purpose of a return order under the Hague
Convention, a young child is highly unlikely to be able to grasp the concepts underlying
such an order. I do not consider that such an understanding is relevant or necessary for the
establishing of settlement in the new environment.
[9] In the result, I agree that this reclaiming motion should be allowed, as set out by
Lord Malcolm below.
Page 4 ⇓
4
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 34
P902/17
Lady Paton
Lord Menzies
Lord Malcolm
OPINION OF LORD MENZIES
in the petition
of
C
Petitioner
against
N
Respondent
for an order under the Child Abduction and Custody Act 1985
Petitioner: Cartwright; Lindsays
Respondent: Malcolm; MHD Law LLP
2 May 2018
[10] I have read the opinion of Lord Malcom, and am in complete agreement with his
reasoning and conclusions. There is nothing further that I can usefully add.
Page 5 ⇓
5
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 34
P902/17
Lady Paton
Lord Menzies
Lord Malcolm
OPINION OF LORD MALCOLM
in the petition
of
C
Petitioner
against
N
Respondent
for an order under the Child Abduction and Custody Act 1985
Petitioner: Cartwright; Lindsays
Respondent: Malcolm; MHD Law LLP
2 May 2018
[11] On 30 January 2018 the Lord Ordinary upheld a petition brought under the Child
Abduction and Custody Act 1985 and ordered the respondent (the mother) to return her two
sons (E and Y), now aged 9 and 6 years respectively, to Italy. The 1985 Act incorporated the
Convention on the Civil Aspects of International Child Abduction signed at the Hague in
October 1980 (the Convention) into our law. Article 12 provides for mandatory return if
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6
proceedings are raised within 1 year from a wrongful removal or retention. The same
applies in respect of later proceedings, “unless it is demonstrated that the child is now
settled in its new environment” (see the second paragraph, hereinafter referred to as
article 12(2)). The present case is also governed by Council Regulation (EC) No 2201/2003.
The mother now reclaims (appeals) against the return order.
[12] The petitioner (the father) is Italian and resident in that country. The mother is a
Polish national who, prior to her departure in 2016, was resident in Italy. The parties
co-habited from around 2006. E and Y were born in Italy and are Italian nationals. They
were habitually resident in Italy at the time of their removal from that country in 2016.
The background circumstances
[13] For a number of years the parties lived together peacefully and happily. In
about 2015 the relationship deteriorated. There are competing accounts for this. The father
claims that the mother had an affair with another man. The mother speaks of domestic
abuse and violence. In any event the parties separated in June 2015, albeit continuing to live
in the same property for a further 6 months. Physical separation took place in January 2016
when the mother left the family home with the children to live with friends. In her affidavit
the mother claims that in March 2016 the father arrived in an inebriated condition wanting
to spend time with the children. On being refused because of his condition, he punched her
in the face. There are ongoing criminal proceedings relating to this alleged incident, which
occurred in front of the children and the mother’s friends.
[14] Without informing the father, in May 2016 the mother left Italy with the children.
She went to live with her father in Poland. She informed the father where she was. He
replied to the effect that she could stay in Poland for the summer with the children. His
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7
understanding was that the children would return to Italy in time for the autumn school
term, which commenced on 9 September. (There is frequent reference in the papers to the
school term beginning in mid-September, but there is evidence that the exact date was
9 September.) In the course of the summer there was electronic communication between the
father and the children. At some stage this stopped; again there are competing accounts as
to how and why this happened.
[15] The mother’s mother and half-sister live in Scotland. On 4 July 2016 she travelled
there with the children, initially to live with her mother. After 3 months she obtained a
council house where she now lives with the children. It is a three bedroom property with
kitchen, living room, bathroom, and a small garden. Each boy has his own bedroom. In
August 2016 they enrolled at a local primary school. The mother and children continue to
live in that property. It is the position of the mother that she and her children are now
settled in Scotland.
[16] After the children did not return to Italy, the father was contacted by representatives
from their school asking about them, and later by social workers. He consulted an attorney
who suggested that he lodge a complaint before the competent authority reporting the case
as one of international child abduction. In December 2016, through his sister, the father was
informed as to the whereabouts of the mother and his children. In her affidavit the mother
states that in March 2017 the father’s uncle contacted her and asked if the father could come
and see the children. She assented, but he did not exercise contact. On this matter the
father’s position is that the mother replied to his uncle by saying that she would ask the
children, who would then decide. However his uncle heard nothing further.
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8
The petition and related procedure
[17] On 20 September 2017 the father commenced the current proceedings. At a first
hearing on the 29 September, amongst other things, the Lord Ordinary appointed an
advocate to enquire into and report to the court in respect of:
1. The children’s degree of maturity and ability to express views (each child to
be assessed separately).
2. If appropriate, the children’s views on the extent to which they consider
themselves settled in Scotland, and on being returned to Italy for the purpose of the
courts in Italy making a decision about their future place of residence.
[18] The reporter spoke to the children at their school, and also to their head teacher. She
stated that the boys had begun school at the beginning of the previous school year. They
had quickly established themselves. Their English is good and they communicate well with
their friends and others. The reporter indicated that one would assume that English was the
older boy’s first language. He wanted to remain where he was. He wanted to stay with his
mother and younger brother. He named the friends he had made at school. He attends
football and taekwondo lessons. He is a talented football player. His younger brother was
also clear that he wanted to stay with his mother, and he expected that this would be in
Scotland.
[19] The reporter concluded that the boys are intelligent children who exhibit the
maturity appropriate to their age. The concept of settlement was not one which either boy
could understand. They are comfortable in and achieving appropriately at their school
where they have established friendships. E has integrated into the activities available to a
boy of his age near his home. Their head teacher is of the view that removal from their
current circumstances would be unsettling. Neither boy is able to understand the processes
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9
involved in a return to Italy for the purpose of the courts there making a decision about their
future place of residence.
The psychologist’s report
[20] The parties lodged affidavits and other documents. On 3 November the
Lord Ordinary remitted to Dr Katherine Edward, chartered and clinical psychologist, to
enquire into and report to the court in relation to certain specified issues. The report was to
be provided by 30 November. The psychologist interviewed the boys twice at their school.
She also had a discussion with their head teacher. Her report can be summarised as follows.
[21] Both boys spoke positively about their experience of school. They were clearly
engaged in their schoolwork and also had strong sporting interests. Both talked about
having a number of friends and enjoying spending time with them at school. The older boy
had friends nearby with whom he could go out and play. This was less apparent for the
younger child. They presented as very happy and content with their current living
situation. They were positive about their relationship with their mother.
[22] The psychologist explored their understanding of their father. Y stated that their
father knows where they are, but is in Italy because he punched their mother in the eye.
Both boys had seen this happen. They talked about the event in a way that strongly
suggested it to be true. They were clear that they did not want to see their father. They
could recall talking to him on the telephone in the past, but could not remember the last time
this happened. They were both clear that they would not want to speak to him again. They
were adamant that they wanted to stay where they were. They would be happy if they were
to stay living in Scotland and going to their school. At the end of the first conversation both
boys appeared to be excited by what was ahead for them that day at school.
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10
[23] The psychologist had a more detailed discussion with the boys the following day.
They remained clear that they wanted to live in Scotland. They struggled to provide a
specific view as to why they feel so strongly about this, or a sense of what it would be like
for them to leave now. However to the psychologist their desire to remain is genuine.
E was particularly clear that he did not want to go back to Italy. The psychologist explored,
especially with the older boy, the concept of returning to Italy so that a court there could
decide what would happen. Both boys were of the view that they would prefer this decision
to be made in Scotland. This appeared to be related to their sense that Scotland is now their
home. They were very clear that they wish to live with their mother and, particularly, not
with their father. They appeared to find stating this view easier than an exploration of the
emotions surrounding these views. Both were clear that they did not want to talk to their
father. They liked Poland and Scotland much better than Italy. They do not want to visit
Italy. Both boys felt it likely that they left Italy because of how their father acted towards
their mother. They are aware that their parents do not want to talk to each other. They
again spoke positively about their experiences within the school.
[24] The psychologist spoke to the boys’ head teacher. She described the older boy as a
very mature child who had made great progress with his written and spoken English. The
school has a high proportion of children for whom English is not their first language, and
who have Polish parentage, so they have received a good level of support, not feeling that
their language needs were unusual. The younger boy’s language integration was in some
ways easier as primary 1 and 2 work is more visual and aimed towards language formation.
Both boys had settled into the school very quickly upon their arrival. E presents as a
competitive and determined boy who is keen to do well. The school has no concerns for the
boys with regard to academic, social or emotional progress. They are always well presented
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11
at school and their attendance is excellent. Their mother is very involved in their education
and always responds to communications from the school. The boys live in an area with a
strong Polish community. Her impression is that the boys are very well cared for and
nurtured within the home. They rarely mention Italy and only very rarely have spoken
Italian. From the school’s point of view she feels it important that, whatever happens, the
boys are able to feel settled in a school and community environment. The head teacher was
clear that the boys are settled and stable in school. She commented on the high quality of
their sibling relationship and the manner in which she feels this reflects positively upon
their care situation at home.
[25] The psychologist then responded to the specific questions posed by the court. The
first concerned the level of maturity of the children. The older boy seemed to be a mature
child for his age. He thought carefully before responding to questions and understood the
gravity of the issues discussed. He was emotionally protective of his younger brother,
which adds to an air of maturity. He could clearly state his view. It would not be expected
that at his age he could fully explore certain possibilities and hypotheticals; however he is a
young man able to present his own view and, to an age appropriate extent, consider the
emotional impact upon himself of various outcomes.
[26] So far as the younger boy is concerned, his maturity assessment was on a par with
his age. He engaged well but struggled to expand upon his views and emotional states
beyond relatively basic descriptions. He is reliant on his older brother for some elements of
translation (perhaps particularly with strangers) and gains obvious emotional support from
him. He can present a clear view of what he wishes to have happen in his life, and has a
good sense of outcomes which he feels would impact upon him negatively. He has not
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12
reached a level of maturity to understand and explore more complex hypothetical outcomes.
He was able to express views independently of his brother.
[27] The second question was whether the children object to being returned to Italy, and
if so, why they object. The psychologist reported that it was clear that the boys objected to
the possibility of a return to Italy. They were clear about this view, which the psychologist
suggested was genuinely held by both of them. They were not able to give a complex verbal
account of the reasons for this beyond stating that it would make them sad. The boys did
not present a positive view of their life in Italy, and showed none of the obvious positivity or
emotional animation when discussing Italy as was evident when speaking about their time
in Poland or Scotland. They both witnessed negative interaction between their father and
their mother and show no desire to re-engage with their father. This can be compared with
their positivity about their life in Scotland. The psychologist’s view is that this, alongside a
lack of positive emotional connection to individuals in Italy and retained negative
memories, underlay their objection to a possible return to that country.
[28] The third question was whether the children appreciate that the purpose of a return
to Italy would be to enable the Italian court to make decisions about their future. Given
their age and level of maturity the boys were not able to make the distinction between
returning to Italy to enable a court to decide their future, as against returning to Italy to live
there and resume their previous connection with their father. The older child reluctantly
stated that he could tolerate a return which allowed a court to decide on these matters,
however this was an outcome that would cause him anxiety and raise negative emotions.
E was very clear that he wanted decisions to be made for him in Scotland. The younger boy
was not able to comprehend the aforesaid distinction. Given their age and the complexity of
the differentiation of returning to stay and returning so that the court could decide, the
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13
psychologist expects that the latter scenario would be experienced as negatively by the boys
as the former. They were expressing a clear view that they would not wish either outcome.
[29] The fourth question was the extent to which the children consider that they are
settled in their current place of residence, having regard to the physical elements of relating
to community and environment and emotional elements denoting security and stability, and
having regard to the fact that there is a primary attachment to their mother, and her location.
The psychologist’s impression of both boys is that they are very well settled within their
current school and home environment. This was also the clear view of their head teacher,
who is well acquainted with them. They have fully integrated into their school and enjoy
the academic and social aspects. They are emotionally stable and without overt anxiety,
which is a positive given their prior experiences. The cultural mix of their school and
community has allowed them to feel well integrated. They have progressed notably well
with their English. The manner in which the boys discussed their home life and the
descriptions they provided were very suggestive of their strong attachment to their mother,
and it is likely that their proximity to her has been a factor which has facilitated their
positive experience of their time in Poland and the move to Scotland. The manner in which
they present as siblings and their lack of anxiety about the future suggests a stable and
supportive home environment. The boys experience Scotland as their home and would not
wish to leave it. Given the positivity with which they present their current living situation
and the apparent security which it provides for them, it is the psychologist’s expectation that
removing them from that environment would cause anxiety and distress. Removal from
their school, into which they have integrated so well and built meaningful connections,
would also be likely to impact negatively on their emotional and academic development.
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[30] The final question concerned the children’s views on their relationship and
connection with their father. It was reported that both boys presented a negative view of
their father. They were unable to provide an account of positive experiences they had
shared with him, and spoke of witnessing aggressive interaction between their parents. The
older boy spoke of not gaining his father’s attention when it was sought. The psychologist
did not gain a sense that the boys were giving views of their father provided to them by
others. For the most part their sense of their father was vague, negative and distant. They
presented a slightly more ambivalent sense of their prior relationship with their paternal
grandparents. The boys presented as not wishing further interaction or connection with
their father, either direct or via telephone, although they were saddened by his lack of
communication at their birthdays.
The mother’s submissions to the Lord Ordinary
[31] In respect of article 12, the mother accepted that it was incumbent upon her to
establish that the children were settled in Scotland. Reference was made to various
authorities. The mother relied upon evidence from herself and independent parties,
including affidavits from the boys’ head teacher and from neighbours; the boys’ school
reports; the mother’s tenancy agreement; her contract of employment; other documents
indicating an engagement with external health services by the children and membership of
the taekwondo alliance; and the report from the psychologist.
[32] On the basis that it had been established that the children were settled in Scotland, it
was submitted that, in exercise of the court’s overall discretion, an order for return should be
refused because of the children’s welfare. Reference was made to the impact upon them of
removal in terms of their anxiety and distress, the disruption, and their schooling. A history
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15
of domestic abuse was spoken to by the mother and other witnesses, and supported by a
medical report and an official police report submitted to the prosecutor in Italy. At the time
of their removal the mother and children were not living in settled accommodation, and this
would remain an issue if they were returned. The mother has employment in Scotland but
not in Italy. The court was reminded that the primary objective of the Convention, namely
the swift return of the children following an abduction, can no longer be achieved. The
views of the children should be taken into account. To force their return against their clearly
articulated and strongly held views would have an adverse impact upon their wellbeing.
The Scottish home environment is now the settled one. Any change to the status quo would
involve risk and uncertainty for the boys. Their best interests point to refusal of a return
order.
[33] In the context of article 13 and whether the children object to being returned, the
evidence as to the children’s objection to a return is clear. However counsel for the mother
accepted that it was difficult to support a contention that the children are of sufficient age
and maturity that an article 13 objection to return can be upheld. The mother’s defence
rested upon the terms of article 12.
The father’s submissions to the Lord Ordinary
[34] Counsel for the father also referred to case law. It was stressed that after the children
were taken to Scotland their father was not informed as to their whereabouts until
December 2016. This had an impact upon whether they were or were not settled in
Scotland. Their relationship is with their mother, and this is independent of any new
environment. The issue of settlement should be addressed from the start of the new school
term in Italy, being the date of wrongful retention, as opposed to wrongful removal in May
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16
or their subsequent arrival in Scotland. Settlement in a new environment requires to be so
well established that it overrides the otherwise clear duty of the court to order the return of
the child. The effect of article 10 of the EC Regulation means that the Italian courts retain
jurisdiction in substantive matters relating to the children’s welfare; the Scottish courts
having no jurisdiction in such matters.
[35] As to the evidence regarding settlement, it amounts to very little beyond the children
doing well in school. In relation to the emotional and psychological aspects of settlement,
the evidence was superficial and poor. There is no reference to their father and their
relationship with him, and there is nothing particularly suggestive of a connection or
settlement in Scotland. The boys do not have the maturity to understand the Hague
Convention, and this limits any weight to be attached to their views, which are, in essence,
that they want to stay with their mother, not that they want to be in Scotland. The
psychologist reports that E prefers Scotland because he has “toys and friends”, however he
would enjoy both of these in Italy.
[36] The psychologist wrongly approached her task from a welfare perspective. She does
not explore why the boys say only negative things about their father. She does not report on
their relationship with their father and family in Italy before their removal. It is notable that
the children were saddened by their father’s failure to mark their birthdays. The boys
clearly have a limited understanding of their circumstances. It is likely that the removal
from Italy had an emotional toll upon them. Their sudden removal from Italy and their
Italian family is likely to raise issues in their later life unless full consideration is given to
their future by a court with appropriate jurisdiction.
[37] The psychologist had no regard to the boys’ long-term future. Their inability to
express why they do not want to return to Italy lessens the weight to be attached to their
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views. The psychologist did not explore whether the children had been influenced by their
mother’s obvious determination to start a new life without discussion or consultation with
the children’s father. A family “airbrushed” out of a child’s life is likely to cause serious
anxiety and negative emotions, certainly in later life. The psychologist accepts that the boys
have a strong attachment to their mother and “their proximity to her has likely been a factor
that has facilitated their positive experience of … the move to Scotland”. When considering
settlement the court is required to consider more than a child’s relationship with his mother.
One should look to the long-term consequences for the boys of their futures not being
properly adjudicated upon. For settlement to be established there must be a consideration
of the long-term future for the child. The outcomes for children whose family history is
hidden from them are generally not positive. The children should be returned in order that
an appropriate court can consider all of these issues. The failure to include their father and
paternal family in their lives suggests not emotional or psychological settlement, but rather
insecurity and uncertainty. The psychologist’s approach was superficial and one-sided, thus
the court should be careful of affording too much weight to her views in respect of the
children’s relationship with their father.
[38] The subterfuge in bringing the boys to Scotland contradicts their settlement in
Scotland. Having been spirited away from one parent, they are likely to be fearful of losing
another parent and thus eager to please her. The apparent evidence of settlement should be
treated with caution, as it has been founded on deceit, not only of the father, but also of the
boys themselves. Their right to know and have a relationship with their father has been
ignored by their mother. The evidence of settlement is superficial and focuses mainly on the
boy’s schooling and hobbies, as one would expect with young children. There is almost no
evidence about the children being settled in a new family environment; in fact the evidence
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is to the reverse. There is conflict within the wider family in Scotland and no relationship
with the family in Italy. There is almost no reference to the boys’ emotional stability and
security beyond that they seem well/present well and have a strong attachment to their
mother. The boys are simply getting on with the life their mother has made for them, and
which she could make anywhere for them. The boys’ negativity about their father, when
contrasted with the fact that they were saddened by his lack of communication at birthdays,
is suggestive of children who are confused and not emotionally settled. The children are
aware of the parental conflict, and will be suggestable.
[39] Were the court to come to the view that the children were settled, it was asked to
exercise its discretion to grant the order for return. Reference was made to the proximity of
the raising of proceedings to the 12 month period; the aims of the Convention when set
against the respondent’s actions; the disharmony within the mother’s own family; the view
that the boys simply wish to be with their mother as opposed to being in Scotland; the
mother should not be permitted to benefit from her actions; and article 10 of the Regulation
of 2003.
Submissions in response for the mother
[40] In a short response the mother submitted that there could not be a wrongful
retention in that the initial removal from Italy was not agreed. The cases on concealment
could be distinguished from the facts of this case. To the extent that there was any
concealment, the father was in the dark for a limited period. Thereafter the children lived in
Scotland for nine months prior to the raising of these proceedings, and for over a year in
total. Any concealment has no bearing on the question of settlement. The mother denied
that the Italian courts retained jurisdiction in terms of article 10.
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19
[41] As to earlier cases dealing with a child’s relationship with the mother, they concern
very young children, whereas here the boys are both of school age and act independently of
their mother in many respects. Many of the factors relied upon by the father have no
bearing on the issue of settlement. The psychologist’s report had been misunderstood in
certain respects. It requires to be considered as a whole. It is clear that the boys now
consider Scotland to be their home. If the father had wished contact he could have
requested that at any time, but had not done so. If the children remain in Scotland, they will
gain a habitual residence in this jurisdiction.
Further response for the father
[42] The father submitted that, wherever the mother goes, the boys will follow. She
thought nothing of uprooting them from Italy, and she may uproot them again. The
departure from Italy was foisted on the children, as was the move to Scotland. The children
are too young and immature to object to a return. The allegation of domestic abuse is a
criminal matter still pending in Italy. It is yet to conclude because the mother is no longer
living in Italy. It remains an unproven allegation. The mother’s lack of accommodation in
Italy is the result of her own choices. The father will assist in securing accommodation for
her. The mother should not be able to rely on factors created by her to subvert the aims of
the Convention. It was reiterated that the children’s wish to stay is based upon a wish to
remain with their mother, rather than a desire to stay in Scotland.
The Lord Ordinary’s decision
[43] The Lord Ordinary heard the submissions of counsel for the parties on 4 and
12 December 2017. On the latter date he issued an ex tempore judgment indicating that he
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20
intended to grant the prayer of the petition. This court was informed that the view taken
was that the children were not settled in their new environment. His Lordship continued
the petition so that he could be addressed on the arrangements to be made for the
accommodation and ongoing support of the mother and children on their return to Italy.
After hearings on 16 and 30 January the court was satisfied on these matters. The
Lord Ordinary granted the prayer of the petition and ordered the mother to return the
children to the jurisdiction of the Italian courts by 2 April 2018.
[44] Shortly before the appeal hearing his lordship provided a note setting out his
reasoning. He considered that the failure to return the children to Italy at the start of the
autumn school term in 2016 was “a fresh, a new, wrongful removal”. Nonetheless it
remained necessary to consider the question of settlement. The date of the commencement
of the school autumn term in Italy had not been precisely established, the best evidence
being that it was about mid-September. (In fact there was evidence that the relevant date
was 9 September, and before this court it was not suggested that the proviso to article 12
based upon settlement in the new environment did not arise.) The Lord Ordinary addressed
the question of settlement in terms of article 12. He noted that where the proceedings are
raised after the expiry of 1 year since wrongful removal (or wrongful retention) a discretion
arises to refuse the return of the children if “it is demonstrated that the child is now settled
in its new environment.”
[45] The Lord Ordinary dealt with the question of settlement and related matters at
paragraphs 25 to 36 of his note:
“[25] Settlement is a question of fact. The issue has been considered by the Inner
House: Perrin v Perrin 1994 SC 45, where stress was placed on determining the
physical element involved in relating to a community and the emotional element
denoting security and stability; and in Soucie v Soucie 1995 SC 134, which
emphasised the balance that a court required to strike between the interests of a child
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not being uprooted from its community of habitual residence and cases where a clear
need to remain where it had become settled could be established. In the House of
discretionary nature of the decision to be made by a court was to the fore, to the
extent that it was stated that in appropriate circumstances an order for retention [sic]
can be made even if a court is satisfied that a child is settled in its new country of
residence.
consideration to the views of children in relation to the issue of settlement.
[27] In relation to the factual issues which have been employed in considering and
determining issues of settlement a lengthy list was developed in the submissions of
counsel. Examples given were children being settled in a physical sense in a
community, in school, in home, with other people, having friends, participating in
groups and community activities, the degree of emotional security a child may
develop with a geographical place and the element of security and stability. It is
probably fair to assert that it would be impossible, and in any event of no practical
value to attempt to devise a list of all factors which might be relevant. As I said at
the outset of this chapter, settlement is a question of fact. In an individual case the
court must simply assess all the relevant factors upon which it has evidence or
information and then attempt to strike a balance between the competing interests of
the objectives of the Hague Convention to discourage wrongful removal of children
and the interests of children to have security and stability in the place where they are
being brought up.
[28] In the present case the two children are relatively young, 9 and 6 years of age
and are consequently of primary school age. They were born in Italy, resided in that
country until May or June 2016, and spoke at the time of the wrongful removal
Italian as their primary language. They were raised, when living in Italy, in the
company of Italian relatives and at least in the case of the older child had attended
school or pre school in that country. They held Italian passports. By virtue of their
mother’s nationality they had both connections with, and relatives in Poland. On the
basis of the evidence before me they had no connection with the United Kingdom,
specifically Scotland, before being brought to this country in July or August 2016.
On arrival in Scotland they had, objectively judged, no real discernible connection
with this country. They either did not speak or had limited competence in English.
Insofar as I can determine the reason for the children’s arrival in Scotland appears to
have been the desire of the respondent to avoid requiring to return to Italy. The
respondent’s only connection with Scotland seems to have been that her mother and
a sister resided here. It is to be noted that at some stage, for reasons which the court
is not aware, the respondent ceased to have contact with her mother and sister. The
situation at the date of the hearing was that the respondent and therefore the
children had no relatives with whom they were in regular contact resident in
Scotland.
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[29] On the basis of information before the court the children are, in a material
sense secure in Scotland. The respondent has obtained the tenancy of a local
authority house where the family live. Both children attend school. An affidavit,
which deals with both children, was available from the head teacher of the relevant
school. On the basis of this document it is clear that both children have settled in the
school environment and are involved in the school community. The older child’s
English has progressed well. He participates in sporting activities. A school report
was available which is confirmatory of these matters. The head teacher had less
detail to impart about the younger child, but again a school report was available.
This was in favourable terms. Both children have made friends at school.
[30] Both children have been seen by a consultant child psychologist on two
occasions. The psychologist also spoke with the children’s teacher. Both children
state they like living in Scotland. Both children were settled in both their home and
school environment. Both children stated that they did not wish to leave Scotland.
The psychologist did not doubt the voracity [sic] of these views.
[31] In addition to the foregoing the respondent produced affidavits from two
neighbours. In relation to care these documents were positive. The view was
expressed by both deponents that the children were happy and participated in social
events within the community in which they lived.
[32] All the foregoing matters were founded upon by counsel to the respondent in
support of her submission that settlement in Scotland was established and that the
court should exercise its discretion to refuse a return order.
[33] In response to the respondent’s submissions on the issue of settlement and
return counsel for the petitioner drew to my attention the views expressed in the
report of the child welfare reporter. In the final paragraph the reporter expressed the
view that ‘Neither boy is able to understand the processes involved in a return to
Italy for the purpose of the courts here making a decision about their future place of
residence.’ I would also note that the reporter remarked that in response to a
question designed to obtain the older child’s views he replied ‘that he wanted to stay
with his mother and [younger brother].’
[34] In relation to the psychologist’s report counsel for the petitioner noted that
whilst both children were able to say they wished to stay in Scotland, neither was
able to verbalise a reason for this. It was submitted that whilst the psychologist
profers an explanation for this, the explanation does not have regard to relevant
considerations such as the circumstances of the removal from Italy, the effect of
exclusion from Italy on the children and the respondent’s hostile attitude to the
petitioner. It was also observed that the psychologist reports that the positivity
expressed by the children in relation to living in Scotland appears to be focussed on
features such as ‘toys and friends’, which ignores or at least gives insufficient weight
to the existence of these features in Italy. It was also drawn to my attention that the
psychologist did not expressly diverge from the reporter’s view, already quoted, that
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the children were unable by reason of age to adequately express a view on the issue
of return.
[35] On the basis of all the information available relative to settlement, I have
formed the view that whilst these children have, using the word conventionally,
settled well in Scotland this is primarily due to their attachment to their mother. I
consider that there is nothing unusual or distinctive as to their degree of attachment
to Scotland. I express this view primarily because the children were unable to
explain why they said they wanted to remain in Scotland. Further, the elder child
did state that it was to be with his mother and brother. This supports the view that
primary attachment is maternal, which I do not find surprising. Balanced against
that is the consideration that residence in Scotland entails the children being
removed from the country of their origin and, on the basis of the evidence their
primary culture and social connection. They are now being deprived of contact with
their Italian family members, and for that matter Polish family members. They are
removed from the culture in which they were brought up and with which they have
a real and substantial connection. It appears to me to be a necessary inference from
the child welfare reporter’s concluding remarks on the children, lack of proper
appreciation of the purpose of the Italian courts making a decision about their future
place of residence, that they have no complete understanding of the factors which
require to be considered when that decision is made. The views they have expressed
that they wish to remain in Scotland are based upon an incomplete understanding of
the complex factors affecting their long-term welfare. They have settled well in
Scotland, no doubt because, like most children, they are resilient and adaptable, and,
primarily, are secure in their home environment with their mother. There is no
reason why this need be disturbed by a return to Italy. Arrangements have been
made for them to have accommodation with their mother and apart from their
father. The Italian court, in the country where they have lived most of their lives, is
best placed to make welfare decisions which will have a lasting effect on their
welfare and development.
[36] Having regard to these features I considered that I should exercise my
discretion in ordering a return to Italy.”
The submissions for the mother in support of the appeal against the order to return the
children
[46] The mother has now reclaimed (appealed). She contends that the wrongful removal
took place when the children were removed from Italy in May 2016. In any event, if the
situation is analysed as one of wrongful retention in Scotland from the date when the
children should have been returned to Italy for the start of school, the evidence
demonstrates a date of 9 September 2016, or at latest mid-September, both of which occurred
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more than a year before the raising of these proceedings. It follows that on any view the
issue of settlement under article 12 requires to be considered.
[47] The court has to consider as a matter of fact whether it has been demonstrated that
“the child is now settled in its new environment.” Having formed the view that the children
were settled well in Scotland in conventional terms, the Lord Ordinary did not require to
assess the “quality” of that settlement in any other context. He erred in asking whether
there is anything unusual or distinctive as to their degree of attachment to Scotland, and also
in the view that a child must be in a position to explain why he wants to remain in Scotland.
He was wrong to embark upon a balance between the interest of the child in not being
uprooted from its community of habitual residence and a need to remain where the child
had become settled. (It is important to appreciate that the arguments of the parties were
prepared on the shared understanding that the judge held that the children were not settled
in Scotland, and that this remained their position in oral submissions.)
[48] The Lord Ordinary considered a number of matters which are not relevant to the
determination of the question of settlement; for example, there is no need for a prior
connection with the country of settlement. The Lord Ordinary’s review and assessment of
the evidence was superficial. There was no acknowledgment of the length of time the
children had been living in the one place and attending school. There was no sense of an
appreciation of the true extent of their involvement in the school and local community as
seen in the affidavits and reports, including school reports. It was not explained why all this
evidence does not point to a conclusion of settlement. The evidence includes independent
accounts from the head teacher and neighbours. There was no proper basis for the
conclusion that the settlement in the conventional sense is primarily due to the boys’
attachment to their mother. Most of the evidence relates to the children’s schooling and
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25
activities independent of their mother. The psychologist stated that the proximity of their
mother had been a factor which had facilitated their positive experience in Scotland. There
was no proper consideration of the psychologist’s considerable support for settlement in
terms of both its emotional and psychological elements.
[49] The Lord Ordinary highlighted the comments of the child welfare reporter, namely
“that neither boy is able to understand the processes involved in a return to Italy for the
purpose of the courts there making a decision about their future place of residence.” The
Lord Ordinary erroneously allowed this to inform his approach to the issue of settlement,
and also the exercise of any discretion. The question of a child’s understanding of the
purpose of a return order is part of an assessment of their age and maturity, and can arise
when considering an objection to return in the context of article 13. It plays no part in the
assessment required for determining whether a child is settled or not.
[50] The Lord Ordinary appeared to indicate that he is not of the view that settlement in
terms of article 12 had been established, accordingly the next stage of exercising his
discretion was not required. If it had been, the issue of discretion to order return or not
paragraph 43), and would involve taking account of Convention policy, the circumstances
that gave rise to the discretion, and wider considerations of the children’s rights and
welfare. For whatever reason the Lord Ordinary focused on (i) the children’s lack of
understanding of the processes involved in a return to Italy for the courts there to make
decisions and (ii) on their removal from their culture in Italy. The only welfare based matter
commented upon was the fact that the children “are now being deprived” of contact with
relatives in Italy and Poland; however there was no evidence that this would be a
continuing situation regarding the Italians, and none at all to suggest that there was no
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26
contact with Polish relatives. In so far as the Lord Ordinary addressed an exercise of
discretion, no proper balancing exercise had been undertaken.
[51] The conclusion that the children are not settled in Scotland should not stand, and the
appeal court should consider the matter of new in light of all the evidence and submissions.
On a proper and full consideration of the evidence the conclusion should be that the
children have settled in their new environment. In that event the court’s discretion should
be exercised to refuse to order the return of the children to Italy. The report from the
psychologist makes it abundantly clear that the children would be adversely affected by any
such return. They have been living in Scotland since 4 July 2016. They have attended school
since 17 August 2016. This is the only formal education system the younger child has
experienced. There is a history of exposure to domestic abuse. The mother has no
employment and no accommodation in Italy. The Lord Ordinary sought to address the
latter, but without a satisfactory conclusion. Furthermore, the primary objective of the
Convention is the swift return of the children to their country of habitual residence. On any
view that objective cannot fulfilled. Though still young, the children have strongly held
views which are genuine and considered to be their own. In the exercise of an overall
discretion it is important to take those views into account. The interests of the children
require that an order for their return should be refused.
The submissions for the father in response to the mother’s appeal
[52] For the father it was submitted that the emotional element of settlement would
encompass a sense of belonging to the place rather than just living there in a comparatively
settled manner. A child’s own emotional connection with the place must be more than
feeling secure in the care of an absconding parent. Otherwise emotional settlement upon
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27
that basis could be transferred to wherever the absconding parent took the child. The
question of settlement has to be considered in the “spirit of the Convention” (Soucie v
Soucie 1995 SC 134 at 139). Something more than settlement in the conventional sense of the
there has been concealment of the child’s whereabouts. Judges “should not apply a rigid
rule of disregard but they should look critically at any alleged settlement that is built on
concealment and deceit, especially if the defendant is a fugitive from criminal justice.” An
example of a consideration relevant to the necessary qualitative assessment would be the
ability of the child concerned to explain, independently of the abducting parent, why he
wants to stay.
[53] The Lord Ordinary did not err in his consideration of settlement in terms of article 12
of the Convention. He had regard to the relevant authorities and noted the two elements
required to establish settlement. Having regard to Soucie, the Lord Ordinary was correct to
require settlement so cogent that it outweighed the primary purpose of the Convention to
return the child. In terms of the Convention the child’s interests are to remain in his country
of habitual residence unless there is a clear need for him to remain where he has become
settled. The children’s national heritage is relevant to an assessment of their emotional
integration with Scotland. Until May 2016 they had lived all of their lives in Italy speaking
Italian as their first language. Their removal from their country of origin bears on the factual
exercise which the judge required to carry out since it relates to the emotional constituent of
settlement. The Lord Ordinary considered that the children’s emotional attachment to
Scotland was primarily due to the attachment to their mother. The children had “no
complete understanding” of the emotional aspect of settlement which necessarily
encompasses a consideration of their long-term welfare.
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[54] The appeal court is not entitled to reconsider the facts. The Lord Ordinary
considered all the factual material advanced before him; the weight to be attached to that
material being a matter for him. He had appropriate regard to the psychologist’s report.
The weight to be applied to it is again a matter for him. The “positive experience” of the
children in Scotland is not indicative of settlement in the Convention sense. The children’s
attachment to their mother may have facilitated their positive experience here, however that
is not the same as saying that the emotional element of settlement has been established. It is
axiomatic that if a child does not fully understand the circumstances of his residence in a
new country, it will be difficult to show that he has emotionally integrated into his new
country. “An older child will be consciously or unconsciously enmeshed in the sole carer’s
web of deceit and subterfuge” - Cannon paragraph 57. Where there has been concealment,
for the emotional element of settlement there would require to be a clear understanding of
the relevant facts as to why he was living where he was, and also as to the purpose of a
return order and what it would entail on the part of the child concerned. A lack of
understanding as to why he was living where he was, why he wanted to stay there, and of
the purpose of a return order (all evidenced by an inability to explain those factors)
necessarily impacts on the understanding of the concept of settlement, given that those
factors are directly relevant to the emotional constituent of settlement.
[55] It is not entirely clear why the Lord Ordinary made comments in relation to an
exercise of his discretion. This may have been in relation to the wrongful removal from
Italy, as opposed to the later “second wrongful removal” (paragraph 22 of the
Lord Ordinary’s note). If the Lord Ordinary required to exercise a discretion, he had regard
to all relevant factors relating to the children’s welfare. In particular he took account of the
concealment of their whereabouts; the absence of contact with and a relationship with their
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father and Italian family; the lack of any contact with family in Scotland; that there was no
connection with Scotland prior to moving there; that things such as “toys and friends”
would be available to the boys in Italy; that the children simply want to stay with their
mother who is their primary carer; that leaving Scotland with their mother would not
disturb the boys resilience, adaptability and security with their mother; and the provisions
of article 10 of the Regulation of 2003.
[56] In the event that the court considers the case anew, it was submitted that the
Lord Ordinary’s finding of no settlement should be repeated. If the court finds that there is
settlement, nonetheless it should return the children. The children’s attendance at school
had been based on subterfuge. The father only discovered their whereabouts in
December 2016. Their first language is Italian. The parties are in dispute as to the alleged
domestic abuse incident. The father has offered to provide a property for the mother and
children and pay three months’ rent. The lack of contact with their father will have
impacted adversely on the children’s welfare. A swift return to Italy has been frustrated by
the mother’s concealment of her move to Scotland. The views of the children require to be
read in the context of their limited understanding of their current situation and the purpose
of the Convention.
The case law
[57] The leading authority on the proper approach to settlement under article 12 is In re M
speech of Baroness Hale of Richmond. There were two issues in the case. The first was:
once a child is settled in a new environment, is there still a discretion to return the child
under the Convention, or must that be done, if it is to be done, under some other
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jurisdiction? The second issue was: if there is such a discretion, on what principles should it
be exercised? One view, supported by Lord Rodger, was that a finding of settlement
removed the case from the Convention altogether. This might explain some of the earlier
cases which test “settlement” by reference to, amongst other things, the objectives of the
Convention, perhaps influenced by the comments of the author of the Explanatory Report to
the Convention (paragraph 107) to the effect that if a child has become settled in the new
environment, its return should take place only after an examination of the custody rights
exercised over it, something which is outside the scope of the Convention. A contrary view
settlement merely elides the mandatory duty to return.
[58] Lady Hale recorded that the case before the House appeared to be the first when a
“settled” child had been ordered to return. She reached the view that even a child who was
settled in terms of article 12 could be returned within the Convention procedures and
without an examination in the traditional manner of the child’s best interests. This
“would avoid the separate and perhaps unfunded need for proceedings in the
unusual event that summary return would be appropriate in a settlement case. It
recognises the flexibility in the concept of settlement which may arise in a wide
variety of circumstances and to very different degrees”. (paragraph 31)
However a view had gained currency that in Convention cases the court should favour a
return order in all but “exceptional” cases. This approach was rejected. The Convention
itself identified exceptions to the general rule of return, including settlement under the
proviso to article 12. “It is neither necessary nor desirable to import an additional gloss into
the Convention”.
[59] Lady Hale stated that where the Convention allowed an exercise of discretion, it was
a discretion “at large”. Her Ladyship continued at paragraphs 43/4:
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31
“The court is entitled to take into account the various aspects of the Convention
policy, alongside the circumstances which gave the court a discretion in the first
place and the wider considerations of the child’s rights and welfare. … The
underlying purpose (of the Convention) is to protect the interests of children by
securing the swift return of those who have been wrongfully removed or retained.
The Convention itself has defined when a child must be returned and when she need
not be. Thereafter the weight to be given to Convention considerations and to the
interests of the child will vary enormously. The extent to which it will be
appropriate to investigate those welfare considerations will also vary. But the
further away one gets from the speedy return envisaged by the Convention, the less
weighty those general Convention considerations must be.”
Lady Hale noted that the courts were increasingly taking account of the views of the child,
even when they were not determinative. In paragraphs 47/8 her Ladyship stated:
“In settlement cases, it must be borne in mind that the major objective of the
Convention cannot be achieved. These are no longer ‘hot pursuit’ cases. By
definition, for whatever reason, the pursuit did not begin until long after the trail had
gone cold. The object of securing a swift return to the country of origin cannot be
met. It cannot any longer be assumed that that country is the better forum for the
resolution of the parental dispute. So the policy of the Convention would not
necessarily point towards a return in such cases, quite apart from the comparative
strength of the countervailing factors, which may well, as here, include the child’s
objections as well as her integration in her new community. All this is merely to
illustrate that the policy of the Convention does not yield identical results in all cases,
and has to be weighed together with the circumstances which produced the
exception and such pointers as there are towards the welfare of the particular child.
The Convention itself contains a simple, sensible and carefully thought out balance
between various considerations, all aimed at serving the interests of children by
deterring and where appropriate remedying international child abduction. Further
elaboration with additional tests and checklists is not required.”
[60] In overturning the Court of Appeal’s decision to return the Zimbabwean children,
Lady Hale accepted the proposition that in the past the “child-centric” exceptions of
settlement (article 12) and objection (article 13) had been analysed more from the parents’
perspective than from the children’s. The children had to suffer all the upset of being
brought to the UK secretly. They had settled down and become integrated in their local
church and schools. They were now well settled, and, if the father’s application succeeded,
would again be the victims of a second international relocation contrary to their wishes.
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According to her Ladyship, against all the factors pointing to no return, the policy of the
Convention carried little weight. “The delay has been such that its primary objective cannot
be fulfilled”. In conclusion her Ladyship noted that cases under the second paragraph of
article 12 are few and far between. “They are the most ‘child-centric’ of all child abduction
cases and very likely to be combined with the child's objections.”
[61] In a short concurring speech Lord Hope stressed that the policy of the Convention is
that the interests of the child will always be of paramount importance. Lord Rodger
(paragraph 7) preferred the view that once the child had settled in the new environment,
Convention considerations flew off “because the purpose of the Convention to promote
speedy return can no longer be achieved.” As article 18 envisages, the court should then
have resort to its powers outside the Convention. He concluded by saying that, happily, for
the reasons given by Lady Hale, “it may not make very much difference in practice whether
the discretion is exercised under or outside the Convention.” Lords Bingham and Brown
concurred with the speech of Lady Hale.
[62] Perhaps the most important element in the decision is the emphasis on a
child-centred approach. This is consistent with the overall policy of the Convention, namely
to promote the welfare of children (see the preamble). After a wrongful removal or
retention, a swift return to the country of origin will minimise disruption in the life of the
child; but where that is no longer possible because of the passage of time, and the child is
settled in the new environment, in many, perhaps most cases, to insist on return is likely to
cause harm to the child with little or no countervailing benefit – hence the proviso to
article 12(2). The child-centred approach also suggests that the question of settlement
should be considered from the perspective of the child, and using his or her sense of time
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(see Schuz “In search of a settled interpretation of article 12(2) of the Hague Child Abduction
Convention” (2008) 20 CFLQ 64 at 75).
[63] In submissions to this court both counsel made reference to Perrin v Perrin 1994
SC 45, a decision of the Inner House. The child involved was under 1 year old when
removed, and was still under 2 years at the time of the court’s decision. The affidavits
showed little more than that she was healthy. In its judgment the court referred to a passage
from the judgment of Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413 at 418.
“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."
Bracewell J stressed that every case turns on its own facts. The Lord Ordinary in Perrin had
agreed with all of this, but observed that it was difficult to apply to a child under 2 years of
age. Having said that the word “settlement” should be given its ordinary natural meaning,
Bracewell J spoke of a physical element of relating to a community and an environment, and
an emotional element denoting security and stability. Lord Murray, delivering the opinion
of the court in Perrin, stated (page 51) that where the 12 months is exceeded by only a short
period, the quality of evidence required to establish settlement would require to be good. It
might be thought that this comment ignores the fact that a year had passed, and the clear
inference from the terms of article 12 that a child can become settled in that period. It also
passes over the inability after 12 months to order a prompt return. No doubt for good
reason the authors of the Convention chose to link the possibility of settlement with the
passing of at least a year between the wrongful act and the raising of proceedings under the
Convention. It is not clear to me that any gloss upon the terms of the Convention is
required. Either the evidence demonstrates settlement, or it does not. Similar sentiments
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34
have been expressed elsewhere; see for example the decisions of the Full Court of the Family
Court of Australia in Director General, Department of Community Services v M and C and the
Child Representative [1998] FLC 92-829 at paragraphs 52 and 91, and Townsend v Director
General, Department of Families, Youth and Community [1999] 24 Fam LR 495 at
paragraphs 33/35. Whatever else, it is clear that there cannot be a higher standard than that
required for a change of a child’s habitual residence; on the contrary one might expect
settlement in the new environment to carry a lesser burden of proof.
[64] The Inner House returned to the subject in Soucie v Soucie 1995 SC 134. The
Lord Ordinary had considered that the age of the child was relevant (still under 3 years of
age) in that the important relationship in terms of emotional and physical environment was
the connection with the mother. He considered that, given the spirit of the Convention, it
would only be in exceptional circumstances that a parent would receive a benefit from a
wrongful removal by the court refusing a return order. (It can be noted that this is an
example of the thinking subsequently rejected by the House of Lords in Re M.) Broadly the
Inner House accepted the Lord Ordinary’s views and adopted his approach. The opinion of
the court was delivered by Lord Sutherland:
“… in considering the proviso to article 12 what must be clearly shown is that the
settlement in a new environment is so well established that it overrides the otherwise
clear duty of the court to order the return of the child. In our opinion the respondent
has failed to demonstrate that such a settlement has been established. The facts
founded on by the respondent are such as might be expected to be found in any case
of a young child living with its mother. Because of the age of the child it is unlikely
that the child can properly be said to be established in a community involving such
matters as school, people, friends, activities and opportunities, to use the words of
Bracewell J. As far as the emotional constituent denoting security and stability is
concerned the overwhelming security and stability which is provided for the child
will be provided by the presence of her mother. It is clear from the facts of this case
that if an order is made for the return of the child the mother will go with the child
and accordingly that emotional security and stability can be maintained. For these
reasons we are satisfied that the conclusion to which the Lord Ordinary came on the
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35
facts was one which he was entitled to reach and therefore this reclaiming motion
must be refused.” (page 139)
[65] The need for exceptionality and factors overriding a duty to return the child has been
rejected by the House of Lords. It is now clear that after the 12 months has passed, a two
stage approach is required, not an assessment of settlement in the context of whether a
return order should or should not be made. The first stage under the proviso to article 12(2)
is to ask – is the child settled in the new environment? This is to be approached using the
natural and ordinary meaning of the word “settlement”. It should not be conflated with
notions such as the importance of the aims of the Convention. It is a pure question of fact. If
the answer to the question is no, barring some other determinative factor, the child will be
returned. If the answer is yes, the court then enjoys a discretion “at large”. In this regard
the interests of the child should be at the forefront, as opposed to, for example, a desire to
deprive the removing parent of what might be described as a reward for a wrongful act.
The discretion is to be carried out in recognition that the primary objective of the
Convention, namely to order prompt return, can no longer be achieved, given the long delay
in the raising of proceedings. Counsel for the father made much of the emphasis in Perrin
and Soucie on the importance of the parent/child bond, which it was said contradicted any
finding of settlement, in that it would continue wherever the child was located. Whatever
merit such an approach might have, it is much less apparent in the present case where the
children are of school age and enjoying friends and activities independent of their caring
parent.
[66] For the father, reliance was placed on the Court of Appeal’s decision in Cannon v
Cannon [2009] 1 WLR 32. It was a remarkable case on its facts. The mother abducted the child
from the USA to England, and succeeded in concealing their whereabouts for over 4 years.
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Thereafter the father raised proceedings under the Convention, and the mother claimed,
amongst other things, that the proviso to article 12(2) applied. At first instance Singer J
adopted a child-centred approach and refused to expose the child to the disruption inherent
in “a second dys-location, potentially inflicting cumulative trauma” [2005] 1 FLR 127 at
paragraph 105. The child had been settled in the same city for 5 years and had attended only
one school. The concealment had no impact on her and her mother’s daily lives. In the
judge’s view, the child was settled in terms of the Convention. If he had a discretion, he
would refuse to order her return to the USA.
[67] In perhaps the high-water mark of the adult-centred approach, the Court of Appeal
reversed this decision, explaining (see paragraphs 57/59) that the child must take its
emotional and psychological state in a large measure from its sole carer, and that the court
must stand with the deprived father and not reward the turpitude of the abductor who had
concealed her whereabouts for such a long time. It is difficult to reconcile this decision with
the subsequent guidance in Re M, and it is interesting to note that when the case was
remitted for the application of the appeal judgment, Kirkwood J held that the child was
“settled in every sense of the word” [2005] 1 FLR 938 at paragraph 23. In exercising his
discretion and refusing a return order, he accepted the submission that “the sins of the
mother should not be visited on the child”. He was not willing “to sacrifice this child” in
pursuit of deterrence and a rigorous enforcement of the Hague Convention, which, in any
event, did not require him to do so (paragraph 38). Eventually the father was granted an
order allowing contact in England.
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The Lord Ordinary’s reasoning
[68] It is now necessary to analyse the Lord Ordinary’s decision. Both notes of argument
presented to this court proceeded on the basis that he ordered the children’s return because
he was not satisfied that they were settled in Scotland. We were told that this was the crux
of his ex tempore oral decision. Shortly before the appeal hearing the court and parties
received a note from the Lord Ordinary setting out his reasoning. The passage dealing with
article 12 and settlement has been quoted earlier. It concludes with the Lord Ordinary
saying that he considered that he should exercise his discretion and order a return of the
children to the jurisdiction of the Italian courts. That discretion arises only if settlement has
been established. The disconnect between the submissions of the parties and the terms of
the Lord Ordinary’s note has not eased this court’s task.
[69] The uncertainty may be explained, at least in part, by the Lord Ordinary’s
ambivalence on the question of whether the proceedings were or were not commenced more
than a year after what he described as “a fresh, a new, wrongful removal” in September 2016
when the children were not returned to Italy for the start of the school term. This was on the
view that the father’s agreement that the children could stay in Poland until then, though
not “acquiescence” in terms of the Convention, nonetheless removed any element of
wrongfulness in respect of the earlier removal of the children from Italy. For my part, I
would begin the clock when the children were wrongfully removed from Italy. There was
never any consent to the children being taken from the jurisdiction of the Italian courts. At
most the father recognised a fait accompli and insisted that it should be of a temporary
nature. However, given that on the Lord Ordinary’s approach the 1 year period started on
9 September 2016 (frequently referred to as mid-September), and the proceedings were
raised on 20 September 2017, the point is not of critical importance. The Lord Ordinary says
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that he could not be satisfied as to whether the petition was presented within, albeit just
within, the 1 year period or alternatively, and again narrowly, just outwith that period.
Nonetheless he (correctly) considered that the issue of settlement required to be addressed.
However there was no express and definitive finding on the issue of whether the proviso to
article 12(2) applies, and this may explain some of the uncertainties as to the exact basis for
his Lordship’s decision to return the children. (For completeness it should be recorded that
the father lodged a cross appeal to the effect that the Lord Ordinary wrongly categorised the
failure to return the children to Italy for the start of the school term as wrongful “removal”,
when it should have been wrongful “retention” - a point at best somewhat academic, but
which, in the event, does not arise given the view expressed above.)
[70] The Lord Ordinary mentions some of the case law, including Perrin, Soucie and
In re M. He notes that settlement is a question of fact and states:
“In an individual case the court must simply assess all the relevant factors upon
which it has evidence or information and then attempt to strike a balance between
the competing interests of the objectives of the Hague Convention to discourage
wrongful removal of children and the interests of children to have security and
stability in the place where they are being brought up.”
I have some difficulty with this passage. If, as appears to be the case, it is a description of
the court’s task when deciding whether the children are settled, I would respectfully
disagree with any suggestion that the “competing interests” mentioned play a part in the
exercise. If the Lord Ordinary is merging the two stages of (1) settlement and (2) if settled,
an exercise of discretion, he has fallen into an error similar to that addressed by the guidance
given in Re M.
[71] The Lord Ordinary then recounts the children’s Italian heritage and their lack of
connection with Scotland. He states that the children are, in a material sense, secure in
Scotland. They attend school and their mother has a local authority house. They “have
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settled in the school environment and are involved in the school community.” The older
child’s English has progressed well. (On the evidence the same can be said of Y.)
E participates in sports. The Lord Ordinary records that school reports are favourable and
both boys have made friends. His Lordship mentions the psychologist's report and the
positive affidavits from neighbours who speak to the children being happy and participating
in social events in the community. He notes that counsel for the father stressed the child
welfare reporter’s comment that “neither boy is able to understand the processes involved in
a return to Italy for the purpose of the courts there making a decision as to their future place
of residence.” In response to a question, the older boy said that he wanted to stay with his
mother and younger brother. The father’s counsel had observed that neither child was able
to articulate a reason for their desire to stay in Scotland. The explanation for this given by
the psychologist did not have regard to relevant considerations, such as the circumstances of
the removal from Italy, the effect of exclusion from Italy on the children, and the mother’s
hostile attitude to the father. As to the boys mention of “toys and friends” in Scotland, it
was submitted that they would be available in Italy.
[72] The Lord Ordinary’s reasoning is set out in paragraphs 35/36, which have been
quoted earlier. Having reflected on the full terms of the Lord Ordinary’s note, I consider
that, notwithstanding what was understood to have been the basis for his ex tempore
decision, this court should proceed on the basis of the concluding paragraph of the
Lord Ordinary’s note, namely that the return order was the result of an exercise of his
discretion. Leaving aside that in an extreme case the court will always have an option not to
return a child, in the context and circumstances of this petition the Lord Ordinary would
only be exercising such a discretion if he had concluded that the 12 month time period had
elapsed and the children were settled in their new environment in terms of article 12. In any
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event, in my opinion the evidence overwhelmingly points to the children having become
settled in both emotional and physical terms by the time of the raising of these proceedings.
(I have already mentioned that by then the 12 month period had elapsed.) Reference can be
made to the evidence summarised earlier. I agree with the Lord Ordinary when he says that
the children “have settled well in Scotland”. I am not sure whether he intended to qualify
that by referring to settlement in the “conventional” sense, but that is how the term is used
in the Convention. It has no special or technical meaning. As to counsel for the father’s
reliance upon the “concealment” cases, while recognising that this can be a significant factor
when deciding whether settlement has or has not occurred, each case will turn upon its own
facts. Here the concealment was of limited duration. It had no real impact upon the
children’s lives. It did not prevent timeous raising of proceedings (the failure in this regard
remains unexplained). In my opinion, the fact that the father was unaware of the children’s
whereabouts until December 2016 is of no real significance to the key issues.
[73] If I am in error as to my understanding of the structure of the Lord Ordinary’s
reasoning, and he is to be understood as having rejected the mother’s case upon settlement, I
would take the view that he erred in law. The passages in his note which would have to be
used to justify such an approach, including the removal from Italian culture and lack of
understanding as to the purpose of a return to Italy, are not relevant to what is a purely
factual matter, namely whether in a natural and common sense way it can be said that the
children are settled in Scotland. As discussed below, there is no basis for any view that the
boys’ attachment to their mother contradicts either settlement or non-return. Given the
evidence, I consider that settlement is the only reasonable conclusion in respect of both
children. If it had been necessary I would have concluded that any other view would be
plainly wrong.
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[74] Returning to the Lord Ordinary’s exercise of his discretion, his reasoning is set out in
paragraph 35. His order can be overturned only if one or more of the well-recognised
grounds for interfering with a discretionary decision can be identified. Before considering
this matter further, it is worth summarising the guidance given by the House of Lords in
Re M. It was to the following effect. If, after the passage of at least a year before proceedings
are raised, settlement has occurred, the primary objective of the Convention, namely a
prompt return to the country of habitual residence, can no longer be achieved. The
Convention fixed on the concurrence of that period and settlement of an abducted child as
eliding a mandatory return order. Many judges had viewed these factors as excluding a
summary return order. Lady Hale (and the majority of their Lordships) disagreed, but still
viewed summary return in a settlement case as likely to be an “unusual event”
(paragraph 31). The discretion not to return was “at large”, as opposed to restricted to
exceptional cases (paragraph 43). Increasingly in article 12 cases judges are giving weight to
the views of the children. Furthermore, the courts of the country of origin can no longer be
assumed to be the better forum for the resolution of the parental dispute. The child’s
integration in the new community is a relevant factor. The primary focus is the interests of
the child or children, as opposed to removing any benefit gained by the absconding parent.
Settlement cases are the most “child-centric” of all child abduction disputes.
[75] Reverting to the reasoning of the Lord Ordinary at paragraph 35, he referred to the
following factors:
1
Settlement is primarily due to the children’s attachment to their mother.
2
There is nothing unusual or distinctive in their degree of attachment to
Scotland - a view primarily based on the children’s inability to explain why they
wanted to remain in Scotland.
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3
Residence in Scotland means that the children are removed from their Italian
culture and social connection, and from their Italian family members.
4
The children do not have a proper appreciation of the purpose of the Italian
courts deciding upon their future, nor a complete understanding of the relevant
factors in that decision-making process.
5
The children are resilient and adaptable, and, primarily, are secure in their
home environment with their mother - something which need not be disturbed by a
return to Italy.
6
An Italian court, in the country where they have lived for most of their lives,
is best placed to make welfare decisions which will have a lasting effect on the
children’s welfare and development.
[76] To my mind it is striking that the Lord Ordinary does not appear to weigh in the
balance the detriment to the children of once more being uprooted and returned to Italy,
purely for a court there to resolve the parental dispute. There was evidence that in Italy this
is likely to be a slow process lasting some years, with presumably at least the prospect of a
further return to Scotland after resettlement in Italy. No weight is given to the integration of
the children in Scotland since the summer of 2016 and to their good progress at school,
including their proficiency in the English language. Little or no regard is given to the child
psychologist’s concern as to the harm to the boys which a return to Italy would cause. No
reference is made in this context to their clearly expressed desire to remain in Scotland.
Much is made of their emotional attachment to their mother. The case law discussed earlier
indicates that this has been a major factor in cases involving very young children whose
entire world is more or less their mother. However, E is 9 years old, and Y is 6 years of age.
They are both at school, and clearly have outside interests and friends. Their horizons
expand well beyond their mother and the home environment.
[77] There is no sense that the Lord Ordinary has adopted the “child-centric” approach
discussed by Lady Hale. There is no stated recognition of the impact of the passage of time
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and settlement on the ability to achieve the Convention’s main aim, nor to the downgraded
status of the courts of the country of origin. On the contrary the Lord Ordinary appears to
consider that it is important to return the boys to Italy because that is where they have lived
for most of their lives. Considerable emphasis was placed upon their inability to fully
explain why they want to stay in Scotland. For myself I do not find that surprising for still
relatively young children. Likewise I am unconcerned by their apparent lack of a full
appreciation of the limited purpose of any return to Italy; a factor which bears little on any
of the issues in dispute.
[78] In summary I respectfully consider that the Lord Ordinary has not followed the
authoritative guidance laid down in Re M; has taken account of irrelevant factors; and has
not weighed in the balance relevant factors pointing towards non-return. In these
circumstances I am of the view that it is open to this court to exercise its own discretion on
the question of whether it should order the summary return of the children to Italy.
[79] At the time of writing this opinion, the children have been in Scotland for over
20 months. They are very well settled at home, at school, and in their local community.
Considerable weight should be given to the psychologist’s and the welfare reporter’s
responses to the court’s request for their assistance (summarised above) which point clearly
to non-return. The court has a wide discretion to do what is in the boys’ interests, giving the
appropriate weight to the terms of the Convention and its objectives. The primary aim of a
swift return to Italy can no longer be achieved, as is implicitly recognised in the terms of
article 12. I would echo the comments of Lady Hale to the effect that, against all the factors
pointing to no return, the Convention policies relied on by the father and the Lord Ordinary
carry little weight. I agree with her Ladyship that the return of a settled child is likely to be
an unusual event. While I appreciate that the Lord Ordinary was persuaded that the
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children should be returned to Italy, for myself I can identify no particular features of the
present case which would justify that course of action. The Lord Ordinary approached the
matter on the basis that return was necessary to allow the Italian courts to decide matters.
However, under reference to the Council Regulation, it was the submission of counsel for
the father that non-return will not remove the jurisdiction of the Italian courts to make
decisions which are binding on and enforceable in the Scottish courts. If that is indeed the
case, that would be an additional reason for letting the children remain here in Scotland in
the meantime.
Decision and disposal
[80] In the whole circumstances, and for the reasons which I hope emerge with sufficient
clarity from all of the above, I have no real hesitation in reaching the view that the requested
return order should be refused, and that the children should remain in Scotland with their
mother while their long term future is resolved. I would allow the reclaiming motion, refuse
the cross appeal, quash the interlocutor of the Lord Ordinary dated 30 January 2018, refuse
the prayer of the petition, and, pursuant to article 12(2), make a non-return order authorising
the children to remain in Scotland.