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Cite as: [2019] CSIH 50, 2020 SCLR 459, 2019 GWD 31-490, 2019 Fam LR 134, [2019] ScotCS CSIH_50

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Drummond Young

Lord Malcolm

OPINION OF THE COURT

[2019] CSIH 50

P410/19

delivered by LORD MALCOLM

in the Reclaiming Motion by

Petitioner and Reclaimer

against

Respondent

In respect of the petition for an order under the Child Abduction and Custody Act 1985

Petitioner and Reclaimer: MH Clark; Brodies LLP

Respondent: McAlpine; Morton Fraser LLP

1 October 2019

[1] In this petition under the Child Abduction and Custody Act 1985, the Lord Ordinary

refused to make an order requiring the return of two young children to Rome. So far as

relevant to this reclaiming motion, the circumstances of the case; the evidence led; the

parties’ submissions; and the reasons for the Lord Ordinary’s decision, are set out in his note

dated 25 June 2019, which is appended to this opinion (as it was not published). The Lord

Ordinary found in favour of the petitioner (the father) on two of the three issues in the case,

namely the children’s habitual residence and whether return would create a grave risk of

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harm to them. However he upheld the respondent mother’s article 13 defence based upon

his consent to the removal of the children to Scotland. It is that decision which is now

challenged.

[2] The Lord Ordinary held that it was proved that the father had given written consent

by way of a document dated 18 September 2018. There was a dispute as to its authenticity,

but, preferring the evidence of the mother’s handwriting expert, he concluded that the

signature was that of the father. There was no similar challenge to a WhatsApp message

dated 8 October 2018 in which the father made reference to “my separation note”, and again

indicated that, the marriage having broken down, the children should be with their mother,

with the legal formalities being conducted in the courts of Scotland, if that was the mother’s

wish. He suggested that the children should remain in Italy until Christmas of that year

with legal proceedings concerning the dissolution of the marriage to follow.

[3] On 18 January 2019 the parties were still together. They had a disagreement, which

involved the police being called and the mother and children leaving the house. The

following day they travelled to Scotland, where they continue to reside. The petitioner was

not informed of the removal until after the event. The Lord Ordinary held that it was done

in implement of the aforesaid consent.

[4] In summary the challenge is brought on the following grounds. The Lord Ordinary

erred in concluding that the note of 18 September indicated real, positive and unequivocal

consent to the children’s removal, and that the same was extant on 19 January 2019. It only

allowed the mother “to travel” to Scotland with the children, not to remove them. The fact

that the father wanted the marriage to end did not support the Lord Ordinary’s conclusion.

The parties’ relationship was volatile, with many ups and downs. This deprived any

expressions of consent in September and October of 2018 of the necessary clarity and lack of

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equivocation. The Lord Ordinary did not appreciate the significance of the petitioner’s ill-

health to the question of consent. He failed to have regard to WhatsApp exchanges,

including in December 2018, which envisaged a continuation of family life in 2019.

Reference was also made to a WhatsApp message of 14 January 2019. Any earlier consent

had been revoked by the time of the removal of the children. The Lord Ordinary did not

recognise and give due weight to the abrupt and covert removal of the children. This was

inconsistent with any consent, and of any belief in the consent of their father as at 19 January

2019. Reference was made to the father’s WhatsApp message of 19 January 2019.

[5] As to the father’s ill-health, he was preoccupied with the thought of dying and

suffered stress and anxiety. (It was not suggested that he lacked the capacity to consent.) It

was stressed that the essential characteristic of the parties’ life together was its volatility.

However, by November/December 2018 the marriage had settled down to a degree. The

Lord Ordinary erred in considering that the mother required only to prove the September

consent. Had she truly believed that the father consented to their removal she would not

have removed the children without warning. Counsel for the reclaimer made reference to

various cases, including Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051 and

Zenel v Haddow 1993 SLT 975, the latter being said to be wrongly decided.

[6] For the mother it was submitted that the document of 18 September indicated real,

positive and unequivocal consent to the removal of the children to Scotland. This was

subsequently confirmed in the October WhatsApp message. The weight to be attached to

the volatility of the marriage was a matter for the Lord Ordinary – see paragraph 41 of his

note. Consent was given on numerous occasions, including by texts on 31 December 2018

and 14 January 2019. The state of the father’s health was but one amongst a number of

factors to be considered, though it did not figure significantly before the Lord Ordinary. The

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main argument for the father had concerned the volatile relationship and the disintegration

of family life. It was clear that there was no real expectation of continued family life in 2019.

The Lord Ordinary had regard to all the communications and all relevant factors, and then

reached a decision which was open to him. The removal, albeit clandestine, was in

implement of repeated expressions of consent in the context of the end of the parties’

married life. The message of 19 January was sent less than an hour before the mother’s

flight departed and was not received by her until she reached the UK.

[7] The Lord Ordinary having correctly identified the applicable law, it was submitted

that there is no sound basis for this court to interfere with his decision on a question of fact.

The decision in Zenel v Haddow (cited earlier) has no bearing on the proper outcome of the

reclaiming motion. Counsel made reference to various cases, including KT v JT 2004 SC 323.

[8] There is no dispute between the parties as to the proper approach in law to the

defence based upon consent. The Lord Ordinary outlined the relevant principles at

paragraph 12 of his note. Any consent must be clear and unequivocal. It can be given for

removal at a future time but must still be in operation at that date. The issue must be

viewed in the context of the realities of the family life. It is not to be approached in the same

manner as a commercial contract. Any consent can be withdrawn, and the burden of proof

of consent rests on the party relying upon it. The above is derived from the Court of Appeal

decision in P-J (cited earlier).

[9] The court does not consider it necessary to dwell upon the merits or otherwise of the

majority decision in Zenel. Cases of this kind depend upon their own particular facts and

circumstances. The key question is whether it has been proved that at the time the children

were removed this was done with the consent of the remaining parent. The court reminds

itself of the relatively limited basis upon which it can overturn a finding of fact or on an

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evaluation based upon facts, a topic recently discussed at length in Anderson v Imrie 2018 SC

328 and AW v Greater Glasgow Health Board [2017] CSIH 58. If the outcome was open to the

Lord Ordinary, and his decision is not tainted by any error of law, such as a wrong approach

in law, or a failure to have regard to relevant evidence, an appeal court should not interfere,

even if it thinks it might well have reached a different result. A “generous ambit” is given to

the judge hearing the proof “within which a reasonable disagreement is possible”, G v G

[1985] 1 WLR 647, per Lord Fraser of Tullybelton at page 652.

[10] At root the father’s submissions are an invitation to this court to retry the case and

issue a different decision on the question of consent. We have not identified any error of law

on the part of the Lord Ordinary. He has not made a key finding of fact which has no basis

in the evidence. He has not demonstrably misunderstood or failed to have regard to

relevant evidence. It follows that this court can only interfere if satisfied that the decision

can be categorised as one which was not available to him, or as it is sometimes put, was

“plainly wrong”. For the following reasons, we are not so persuaded.

[11] At the proof there was a dispute as to the authenticity of the September document;

however the ground of appeal relating to that issue was withdrawn at the outset of the

hearing. On the proper interpretation of that document and of the WhatsApp message of

8 October, we have no reason to disagree with the approach taken by the Lord Ordinary. As

to the appeal based upon the father’s ill-health, it is true that the evidence indicated certain

health issues, but there was nothing before the Lord Ordinary which disabled him from

making a finding of consent, if otherwise appropriate. In the court’s view the real issues in

the appeal concern the volatility of the parties’ married life and the covert nature of the

children’s removal.

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[12] The September document indicated that on the breakdown of the marriage the father

was of the view that the children should be with their mother in Scotland. In the October

WhatsApp message he considered that the marriage was over and he stood by his

“separation note”. The mother should keep the children “as they need you even more than

me.” The mother had to decide where she wanted to live, in Italy or in Scotland, and then

the appropriate proceedings could begin. It was suggested that everyone should stay in the

house in Italy until Christmas to allow plans to be made. In short, the children should stay

with their mother wherever she wished to live. The fact that thereafter the parties’

relationship remained volatile, with some periods of affection, and even possibilities of

continued married life, did not fundamentally alter the situation. It is clear that the events of

18 January 2019 made up the mother’s mind that it was time to leave her husband and

return to Scotland with the children. The fact that she did not warn him about this does not

mean that she took this course without his consent. Likewise, if it be the case that after

removal and once he found out what had happened he decided that he was unhappy about

it, and wanted her to stay with the children, that does not exclude the article 13 defence.

Reference can be made to Re K (Abduction: Consent) [1997] 2 FLR 212, pages 216/9 per Hale J,

as she then was. As the Lord Ordinary noted, the context of the September and October

documents was marital disharmony and the marriage coming to an end, with the September

statement being “consistent with the general tenor of the evidence in the case”

(paragraph 41).

[13] It is well established that consent can be given to removal in the future. There was

no material change of circumstances by January 2019, remaining characterised by marital

volatility and disharmony. Prior to the removal there was no evidence of revocation of

consent. While the circumstances bear similarities with those in KT v JT 2004 SC 323 (see

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paragraphs 26/29), in Re L (Abduction: Future Consent) [2008] 1 FLR 914 it was stated that

questions of consent under article 13 will always be fact-specific and involve questions of

degree, and furthermore that “commonsense is everything in this sphere” (Bodey J at

paragraphs 29/30). That was a case where the decision was that the mother did not act on

the basis of the relocation consent relied upon by her, but upon a later more restricted

holiday permission. There is no similar factual context here; and no reason to conclude that

the mother acted as she did because she knew or believed that the father had changed his

views on who should retain the children if she returned to Scotland. The immediate

background was a major disagreement, with police called and the mother taking the

children away from the house. The more general context was repeated recognition by the

father that if the marriage ended the children should be with their mother wherever she

chose to settle. Given his circumstances, which involve spending much of the year working

in a protected compound in Iraq, this was an understandable, indeed entirely sensible

decision.

[14] For the above reasons the reclaiming motion is refused.

Appendix

Note by Lord Brailsford (see paragraph 1 above)

[1] The petitioner is described in the petition as having “British Iraqi citizenship”. At the

time of the raising of the petition he had been resident in Italy for approximately nine years

and was said to be habitually resident in that country. On 5 January 2013 the petitioner

married BS, a British national born in Scotland. The marriage took place in Scotland. There

are two children of the marriage, AS born in September 2013 and DS born in October 2015.

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Both children are British nationals and hold British passports. The two children are the

subject matter of the petition.

[2] The bare outline of the facts giving rise to the current petition are as follows. The

petitioner is the owner of a residential property in Rome, Italy purchased prior to the parties

marriage. Since approximately mid-2011 the petitioner has been engaged by BP as an

independent engineering contractor in the oil industry in Iraq. His pattern of engagement

has been throughout the period since mid-2011 to work for a period of one month in Iraq

followed by a period of one month during which time he is normally resident in Italy. His

place of work in Baghdad is not a suitable place of residence for children and neither the

respondent nor the children have gone with him to Iraq. The respondent and the children

have, in terms of time, been normally resident in the petitioner’s house in Rome. The

petitioner and the children have however spent a minority of their time in Scotland residing

in a property owned by the respondent. The children have attended nursery or pre-school

in both Italy and Scotland. I will return at a later stage and in more detail to the issue of

connection of the children with both Italy and Scotland.

[3] The marriage was, in language used by counsel for both parties, “volatile”. The

tenor of the evidence was to the effect that during the course of at least 2018 the marriage

was deteriorating. On 19 January 2019 the respondent removed the children from Italy and

returned to Scotland. The respondent avers that she had the petitioner’s consent to return to

Scotland with the children, a matter which is disputed. Whether or not there was consent

the actual circumstances of the removal of the children from Italy were covert and not

within the knowledge of the petitioner. The respondent and the two children returned to

her residence in Scotland. They have been resident there since January 2019. The children

have attended nursery or school since that time.

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[4] Against the foregoing background the petitioner avers that the children were

habitually resident in Italy immediately prior to their removal from that country on

19 January 2019, that he did not consent to the removal of the children from that country,

that he had parental rights and responsibilities in relation to the children, that the removal

had been wrongful and that accordingly an order for return of the children to Italy should

be made.

[5] The respondent did not dispute that the petitioner enjoyed parental rights and

responsibilities in respect of the said children. She did not accept that the children were

habitually resident in Italy immediately prior to 19 January 2019. Her position was that the

habitual residence of the children was in Scotland. She further maintained that the

petitioner had consented to the removal of the children from Scotland. Lastly, the

respondent averred there was a grave risk of either physical or psychological harm to the

children should they be returned to Italy. In all the foregoing circumstances the

respondent’s position was that a non return order should be made.

[6] ...

The law

[7] Both parties identified as issues of law to be determined the following matters:

(a) custody rights and habitual residence; (b) the issue of consent and; (c) the “Grave Risk”

defence under Article 13(b) of the Hague Convention.

[8] A number of ancillary legal issues arose. Parties were agreed that in relation to

establishing that the Hague Convention applied in the circumstances of this case an

evidential onus rested upon the petitioner. In the event that that evidential burden was

discharged and it was established that there was a wrongful removal of the children from

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Italy it was agreed that the evidential onus shifted to the respondent to establish the

applicability of any exceptions to the mandatory return of the child.

[9] Both parties had produced reports from skilled witnesses, in both cases experts in the

field of interpretation of handwriting. In relation to these reports counsel for both parties

were agreed that I was not entitled to prefer one report over the other unless I could

determine there was some objective reason for so doing.

[10] In relation to the substantial arguments, that is custody rights and habitual residence,

consent and the Grave Risk defence it was apparent from my consideration of the written

submissions prepared by counsel for each party that there was no material difference with

their interpretation of the law. Both parties agreed that in terms of Article 3 of the Hague

Convention, incorporated into UK law by virtue of section 1(2) of the Child Abduction and

Custody Act 1985, that in the event of the removal of the children from Italy being

established as wrongful I was obliged to return the children to that country unless the facts

satisfied me that one of the definitions set forth in the Convention was engaged, in which

case the exercise of a discretion entitled me to make a non-return order in terms of Article 12

or 13 of the Convention.

[11] ...

[12] In regard to consent counsel for the respondent initially drew my attention to two

Scottish cases where the matter had been considered.1 Beyond those cases both counsel

agreed that the most authoritative guidance in relation to the issue of consent was to be found

in a decision of the Court of Appeal of England and Wales in the case In Re P-J

(Children)(Abduction: Consent)2. The relevant principles identified in that passage were that

1 Zenel v Haddow 1993 SC 975 and KT v JT 2004 SC 323

2 [2010] 1 WLR 1237 at paragraph 48

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any consent given must be clear and unequivocal; it can be given for removal at a future but

unspecified date but must still be in operation at that date; it must be viewed in the context of

the realities of the family life, or more aptly the disintegration of the family life. It is not to be

viewed in the context or governed by the law of contract; consent can be withdrawn at any

time before actual removal; the burden of proving consent rests on the person seeking to

assert it. Again the emphasis in all these tests is on factual matters. The question of consent is

essentially a factual matter.

[13] ...

...

Evidence

...

2) Consent

(a) Petitioner

[22] The petitioner’s position was that the respondent removed the children from Italy in

a clandestine and covert manner. She booked flights for herself and the children to return to

Scotland in the late evening 18 January 2019 with departure being the following day. The

petitioner was not informed of this. There was no structure or planning behind the move.

For example the children, were not enrolled in school in Scotland before their departure

from Italy.

[23] The petitioner’s position was that there was no consent for the respondent and the

children to return to Scotland. The document which the respondent contended constituted

consent did not, as a matter of construction, constitute a clear and unequivocal expression of

consent to removal from Italy. Moreover, on the basis of the forensic science report of

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Kathryn Thorndycraft3 there were doubts as to the authenticity of the purported signature to

that document”. My understanding of the petitioner’s position in relation to this was that

this was an allegation of forgery of a document. There appeared to be a further line of

argument that even if that document was genuine and, as a matter of construction,

amounted to a consent to travel the passage of time since its creation (in September 2018)

and the date of the clandestine departure meant that at the time of departure it could no

longer be regarded as unequivocal and clear consent to removal from a country of habitual

residence.

(b) Respondent

[24] The respondent’s position was that against the background of a deteriorating marital

relationship the petitioner consented to the respondent and the children returning to reside

in Scotland.

[25] Evidence in support of the respondent’s position constituted a document4 in the

following terms:

“TO WHOM IT MAY CONCERN

I [YS] declare that as of today 18 September 2018 wish to declare that I am now

separated from [BS] and wish to proceed to divorce her through the Scottish Legal

System. I have no objection to her travelling to Scotland with our sons [AS] and [DS]

from Rome, Italy. [YS]”

The document has a signature which is said to be the petitioners.

[26] Beyond that the respondent’s position was that the continuing nature of the consent

contained in the document dated 18 September 2018 is confirmed by a text message from the

3 No 6/24 of process

4 No 7/17 of process

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petitioner to the respondent dated Monday 8 October 2018.5 The text is in the following

terms:

“I have been thinking about everything and even though I am unsure as to my real

health condition both physically and psychologically I do not (sic) that neither my

body or mind can take anymore of being with you. We have tried for years to live at

peace but unfortunately it has not and will not happen. You will blame me, I will

blame you and that just makes everything worse…

I also live for my children and my home but not at any cost, and the price that I feel I

need to pay is far too much to keep us as a family. I stand by my separation note, I

don’t want to be your husband anymore, I don’t want you as my wife. You will keep

the children as they need you even more than me. You just need to decide if you

want to continue to live in Italy or if you want to go back to Scotland to live, then we

can start the proceedings under the appropriate legislation. My suggestion is that we

all stay in the house in Italy until Xmas. At least that way we have time to plan and

if you do want to move back to Scotland then [AS] can finish the semester at his

current school.”

The respondent’s position was that the reference in the text message to “my separation note”

is a reference to the document dated 18 September 2018. Beyond that the text is said to

plainly show a continuing consent to a removal from Italy to Scotland if the respondent

wishes. It is confirmatory of the position that there was consent given to the respondent to

remove the children to Scotland.

[27] It was not disputed that the text was sent by the petitioner to the respondent. The

construction of the language in the text is a matter for the court. So far as the statement in

the document dated 18 September 2018 is concerned the petitioner disputes the signature

was his and, as I understand it, maintained it was a forgery. To that end both parties

obtained reports from handwriting experts. Both parties were agreed that I could not accept

one handwriting report in preference to the other unless there was an objective reason for so

doing. Whilst it was not a matter of agreement I am satisfied that both reports were

5 No 7/56.1 of process

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prepared by persons who were properly qualified to give expert testimony on the question

of handwriting.

[28] In relation to the substantials of both reports the critical element is the conclusion in

the report by Kathryn Thorndycraft on behalf of the petitioner that “it is probable that the

question signature” is not the genuine signature of the petitioner. In that regard the

conclusion of the report by Dr Evelyn Gillies was at variance, that author considering there

was “a high probability” that the signature was that of YS. Following exchange of both

reports an addendum report was prepared by Dr Gillies. This considered the conclusions of

Ms Thorndycraft’s report and made a number of criticisms. Of themselves these criticisms

might form the basis of an objectively justified basis to differentiate between the two reports.

The most important consideration is however the information provided by Dr Gillies, that

was not disputed by counsel for the petitioner, that the document examined by

Ms Thorndycraft was not an original but was a photocopy of the original document. It was

the opinion of Dr Gillies that this was an impediment to the conclusions reached by

Ms Thorndycraft. The reasons for the criticisms originating in the expression of an opinion

on handwriting based on a photocopied document are expressed succinctly under the

heading “Overall Comments” on page 6 of 8 of Dr Gillies’ addendum report.

...

2) Consent

[40] A preliminary, but fundamental matter in relation to this issue is the authenticity or

otherwise of the petitioner’s signature on the note dated 18 September 2018. In regard to

that question I consider that I am entitled to prefer the evidence adduced on behalf of the

respondent from Dr Gillies to that produced by the petitioner in the report by Kathryn

Thorndycraft. My reasons for taking this view are primarily to be found in the addendum

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report of Dr Gillies and in particular her comments, which are critical of Ms Thorndycraft’s

report on page 6 of 8 of the addendum report. This page contains a number of cogent and

plausible criticisms of Ms Thorndycraft’s report. Most importantly, and in my view of

primary importance, is the observation that the document subjected to examination by

Ms Thorndycraft was not an original – albeit that an original was and could have been

available for examination. The fact that an original document was available and not

examined of itself raises questions in relation to the best evidence rule. More fundamentally

than that however it is, as Dr Gillies explains, well recognised – indeed it is so well

recognised and features so frequently in reports that I consider the matter almost to be

within judicial knowledge – that there are problems and limitations in attempting forensic

handwriting examination on the basis of photocopies. For these reasons I prefer and am

prepared to accept the report and addendum report of Dr Gillies in preference to that of

Ms Thorndycraft. The conclusion of Dr Gillies’s report is that it is highly probable that the

signature on the document dated 18 September 2018 is that of the petitioner. I proceed on

that basis.

[41] Having accepted the document of 18 September 2018 as genuine I consider that there

is no difficulty in construction of that document. The document is, in my view, a clear and

unequivocal expression of consent, and moreover consent of a continuing nature, to the

respondent travelling to Scotland with the children. The context in which that consent was

granted, as is apparent from the terms of the document itself, is of marital disharmony and a

desire by the petitioner for the marriage to be brought to an end. It should be noted that that

statement is in any event consistent with the general tenor of the evidence in this case.

[42] My conclusions in relation to the document of 18 September 2018 would be sufficient

of themselves to determine the issue of consent in favour of the respondent. However, and

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having regard to the fact that counsel for the petitioner presented an argument that even if

there was consent it had subsequently been terminated, I consider the text dated 8 October

2018. There is no dispute that this was a text sent by the petitioner to the respondent. I

observe that the text itself makes reference to “my separation note” which, at least as a

matter of inference, appears to relate to the document dated 18 September 2018 and provide,

if it was needed, further evidence of the authenticity of that document. Beyond that the text

is again a clear expression of the petitioner’s view that he wished the marriage to terminate

and, moreover and importantly, that he was content that the legal formalities of marital

dissolution could be determined in the courts of Scotland, if that was the wish of the

respondent. The text also appears to carry the implication of an acceptance that the

respondent is the primary carer of the children (“you will keep the children as they need

you even more than me”). This expression would, in my view, be consistent with

permitting the respondent and the children to return to Scotland. Lastly, the text carries

with it the plain implication that consent is ongoing shown by the fact that the author

suggests that both parties and the children remain in Italy until Christmas (that is 2018) with

legal proceedings in relation to dissolution of the marriage to follow thereon.

[43] The construction I place upon this document is a further expression in addition to the

document of 18 September 2018 stated in clear and unequivocal terms that the respondent is,

at her choice, free to return to Scotland with the children.

[44] On the basis of the foregoing I am satisfied that the return to Scotland on 19 January

2019, albeit the removal on that date was done covertly and without bringing it to the

attention of the petitioner, is implement of consent initially uttered by the petitioner on

18 September 2018 and continuing thereafter until the date of departure from Italy.

Page 17 ⇓

[45] I should add at the end of this chapter of my analysis a few comments in relation to

reliability and credibility. An argument was advanced by counsel for the respondent to the

effect that if I accepted that the document of 18 September 2018 was authentic and had been

signed by the petitioner then, in face of the petitioner’s denial of signing the document, this

finding was adverse to the reliability and credibility of the petitioner. I accept this

submission to be well founded and, as a matter of law, correct. It is not however, in my

view, of material significance in this case. None of the other disputed issues, that is habitual

residence and grave risk, in my view turn on issues of the reliability or credibility of the

petitioner’s evidence. I accordingly need say nothing further about the issue of reliability

and credibility.

...

Conclusion

[48] On the basis of all the foregoing whilst I am satisfied that it has been established that

the children had a habitual residence in Italy immediately prior to their departure for

Scotland on 19 January 2019 I am equally satisfied that the petitioner had consented to the

removal of the children from that country and their return to Scotland. Having regard to

those findings the removal of the children was not wrongful within the meaning of that term

in the Hague Convention. I will accordingly make a non-return order.