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TS v S (Court of Session) [2024] CSIH 24 (02 August 2024)
URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024csih24.html
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[2024] CSIH 24
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 24
P1161/23
Lord Malcolm
Lord Tyre
Lady Wise
OPINION OF THE COURT
delivered by LADY WISE
in the Petition
by
TS
Petitioner/Reclaimer
against
S
Respondent
Petitioner: Clark, Trainer; BCKM Solicitors
Respondent: McAlpine, Donnachie; BTO LLP
2 August 2024
Introduction
[1]
On 25 June 2024 we heard and refused a reclaiming motion (appeal) by the petitioner
against a decision refusing to order the return to Chechnya, Russia, of a child retained in
Scotland by her father. This opinion sets out the reasons for that decision.
[2]
The case involves a child referred to as Cristina by the Lord Ordinary in her opinion -
[2024] CSOH 40. Cristina is now 8 years and 5 months old. Her mother, the petitioner, is a
2
national of Kazakhstan and her father, the respondent, is a British national. Cristina is also a
British national but has a visa which would entitle her to live in Russia.
[3]
There was no dispute at first instance that Cristina was habitually resident in Russia
on 28 August 2023 when she was retained wrongfully in Scotland by her father. The mother
had been exercising rights of custody under the law of Russia and so, absent any defence
under Article 13 of the 1980 Hague Convention Cristina would require to be returned to
Russia. The father advanced two cases before the Lord Ordinary; first, that Cristina's return
to Russia would expose her to physical and psychological harm or otherwise place her in an
intolerable situation and secondly, that the child objected to such a return.
[4]
On 4 April 2024 the Lord Ordinary rejected the "grave risk" defence but accepted
that the child had objected to a return, that she was old and mature enough to do so and
decided that, in the exercise of discretion, the petition seeking an order for her return to
Russia should be refused. On appeal, only the objection defence and the Lord Ordinary's
decision in relation to it, remained live.
Circumstances of the case
[5]
The background circumstances are set out in the Lord Ordinary's opinion. In
essence, the parties lived together in family with Cristina in Sakhalin Island, Russia, until
October 2020. Sakhalin Island lies just north of Japan near to the east coast of the Russian
mainland. The couple were divorced on 8 October 2020 by a court in Sakhalin Province. A
court order was made determining that Cristina should reside with her mother at that time.
The father was to have care of Cristina for certain periods each week, every second weekend
and for three weeks holiday each year either within Russia or beyond.
3
[6]
The petitioner remarried in 2021 to a man referred to by the Lord Ordinary as ZSA.
On 18 September that year she left Sakhalin Island and went to Kazakhstan where she
stayed briefly until moving to Grozny, Chechnya. In late summer 2022 she returned to
Kazakhstan but was living in Grozny again from mid-January 2023. Cristina had not
attended school in Russia until she was enrolled in a school in Grozny in January 2023. She
had attended an international school in Kazakhstan for a few months prior to that. Grozny
is situated some 6,000 miles west of Sakhalin Island.
[7]
The father remained in Sakhalin Island until August 2023 when he brought Cristina
to Scotland for a holiday period with the mother's consent. On 4 September 2023 he
informed the petitioner that Cristina would not be returning to Russia. Cristina has lived
with her father in Scotland since August 2023. The respondent has not returned to work in
Russia to date.
[8]
By the time of the hearing before the Lord Ordinary the petitioner was pregnant with
ZSA's child. Shortly before the hearing of the reclaiming motion, the petitioner had returned
to Kazakhstan where she gave birth to a daughter. We were told that her intention was to
return to Chechnya in the near future.
The applicable law
[9]
It was conceded that the retention of Cristina in Scotland was wrongful in terms of
Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child
Abduction, incorporated into law throughout the UK by the Child Abduction Custody
Act 1985. Article 12 provides that where the child has been present in the new jurisdiction
for less than one year a return to the state of habitual residence forthwith will be ordered.
Possible exceptions to that rule are provided in Article 13 which provides:
4
"Notwithstanding the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order the return of the
child if the person, institution or other body which opposes its return establishes
that -
a)
...
b)
there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation.
The judicial or administrative authority may also refuse to order the return of the
child if it finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and
administrative authorities shall take into account the information relating to the
social background of the child provided by the Central Authority or other competent
authority of the child's habitual residence."
Authorities on objection cases
[10]
The leading authority on Article 13 child objection cases remains that of In Re M and
paragraph 46 of that decision Baroness Hale stated:
"In child's objection cases, the range of considerations may be even wider than those
in the other exceptions. The exception itself is brought into play when only two
conditions are met: the first, that the child herself objects to being returned and
second, that she has attained an age and degree of maturity at which it is appropriate
to take account of her views. These days, and especially in the light of Article 12 of
the United Nations Convention on the rights of the child, courts increasingly
consider it appropriate to take account of a child's views. Taking account does not
mean that those views are always determinative or even presumptively so. Once the
discretion comes into play, the court may have to consider the nature and strength of
the child's objections, the extent to which they are `authentically her own' or the
product of the influence of the abducting parent, the extent to which they coincide or
are at odds with other considerations which are relevant to her welfare, as well as the
general Convention considerations referred to earlier. The older the child, the
greater the weight that her objections are likely to carry. But that is far from saying
that the child's objections should only prevail in the most exceptional
circumstances."
5
And at paragraph 48, having considered the policy behind the other limited defences to a
return, Baroness Hale concluded:
"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 and where appropriate remedying international child abduction.
Further elaboration with additional tests and checklists is not required."
[11]
The approach to child objection cases that has developed in England and Wales
applies equally in this jurisdiction. In the decision of the Extra Division decision in
W v A 2020 [CSIH 55] 2021 SLT 62, Lord Malcolm confirmed (at paragraph 9) the two stage
approach, including the child-centric reasoning at stage two, stating:
"In Article 13 cases the age and sufficient maturity test, once passed, is a gateway to
the court exercising a discretion, authoritatively said to be `at large', as opposed to
being directed by the Convention to return the abducted child. ... In this regard
courts are increasingly giving weight to the views of the child. A child centric
approach is required, with her interests and general welfare at the forefront. The
focus is not on the moral blameworthiness of the abducting parent, nor on notions of
deterrence. While Convention considerations will always be relevant, the further
one is from the main aim of a speedy return, the less weighty they will be. If a child
is integrated in the new community it is relevant to consider the effect of a further,
and unwanted, international relocation pending the long term decision."
On the issue of the relationship between an existing decree (in that case from a Polish court)
and the exercise of discretion on a 1980 Convention return order, Lord Malcolm expressed
the view (at paragraph 16) that:
"There may have been a time when disapproval of the mother's wilful defiance of
the Polish court's order would have so prejudiced her position that a return was
always going to be the likely outcome. But now the focus is on the best interests of
the child at the heart of the proceedings, not least since this is the core value running
through the Convention."
[12]
There are many examples of cases involving the child's objection defence; most are
first instance decisions that are fact dependent and of minimal assistance in an appeal of this
6
sort. Two cases are worthy of note in the present case. First, a Court of Appeal decision, In
Re M (Children) [2016] Fam 1. There, an appeal was allowed against a decision to return
three children aged 13, 11 and 6 to Ireland. In relation to very young children, Black LJ
stated (at paragraph 67):
"67
Furthermore, it is now recognised that children as young as six can be of
sufficient maturity to have their objections taken into account ... The perspective of a
six-year-old as to what is in his or her interests, short, medium and long term, will
necessarily be very limited and the In re T approach would surely be a formidable
obstacle to his or her objections being taken into account. The fact that a six-year-old
may not be as able as an older child to understand and take account of all the
material considerations is catered for at the discretion stage by the fact that (see In re
M [2008] AC 1288, para 46) `[the] older the child, the greater the weight that her
objections are likely to carry'".
Secondly, it is sometimes suggested that a child's objection should be given less weight if
there is no evidence that the child appreciated that a return would be so that the courts of
the state of habitual residence could determine the issues of residence/custody. In the case
of PH Petitioner, [2014] CSOH 79, Lord Doherty rejected that contention and considered (at
paragraphs 13-14) that what mattered were the clear and unambiguous views of the child in
that case, which coincided with other considerations relevant to her welfare.
[13]
On the circumstances in which an appellate court can interfere with a decision
involving the exercise of discretion, the approach remains that summarised by Lord Fraser
"... it would not be useful to inquire whether different shades of meaning are
intended to be conveyed by words such as `blatant error' ... and words such as
`clearly wrong,' `plainly wrong,' or simply `wrong' used by other judges in other
cases. All these various expressions were used in order to emphasise the point that
the appellate court should only interfere when they consider that the judge of first
instance has not merely preferred an imperfect solution which is different from an
alternative imperfect solution which the Court of Appeal might or would have
adopted, but has exceeded the generous ambit within which a reasonable
disagreement is possible. The principle was stated in this House by my noble and
learned friend Lord Scarman in B v W (Wardship: Appeal) [1979] 1 W.L.R. 1041,
7
where, after mentioning the course open to the Court of Appeal if it was minded to
reverse or vary a custody order he said, at p.1055:
`But at the end of the day the court may not intervene unless it is satisfied
either that the judge exercised his discretion upon a wrong principle or that,
the judge's decision being so plainly wrong, he must have exercised his
discretion wrongly.'"
The Lord Ordinary's decision
[14]
The Lord Ordinary had available to her a recent report from an experienced child
psychologist and expert witness, Dr Katherine Edward (number 18 of process). That report
concluded that Cristina had the maturity to be expected of a child her age although her
verbal and performance skills exceeded her chronological age by about two years. She was
bilingual and performed well academically. Dr Edward found that Cristina's views were
reasoned and age appropriate. The Lord Ordinary concluded (at paragraph 74) that Cristina
was of an age and maturity such that it was appropriate to take account of those views. Her
young age was not inconsistent with that conclusion but was said to be a factor to be taken
into account. The Lord Ordinary exercised a discretion in terms of the usual approach to
Article 13 before deciding whether or not to make an order for return.
[15]
Although Cristina had not been asked whether she understood that if she were
returned to Russia it would be with a view to a court there addressing the question of the
parent with whom she should live, the Lord Ordinary did not regard that as a factor
reducing the weight that should be given to her view (PH Petitioner [2014] CSOH 79). She
weighed up the independent evidence which supported that Cristina was settled well in
Scotland and balanced that against the policy or object of the Convention to deter parents
from pre-empting results of a dispute between them and restoring a child to her home
country so that any dispute could be determined there.
8
[16]
Under reference to W v A the Lord Ordinary considered the moral blameworthiness
of a parent to be of little assistance in the exercise of discretion. She accepted that the
petitioner was not responsible for the delay in bringing the proceedings and that there were
no serious welfare concerns in the event that the child was returned to Russia. On the other
hand, Dr Edward had concluded that neither of Cristina's parents had influenced her view
and that the child was motivated by her positive relationship with her father, something she
felt she had from a very young age. Ultimately the Lord Ordinary determined that
discretion should be exercised in favour of refusing to order a return and that neither the
policies underline the Convention nor the petitioner's previous role as primary carer were
sufficient to outweigh that.
Submissions for the reclaimer
[17]
Counsel for the reclaimer accepted that the test to interfere with the exercise of a
judge's discretion was an exacting one. However she contended that the Lord Ordinary was
"plainly wrong" in her decision to refuse the return of Cristina to Russia. The
Lord Ordinary had attached considerable weight to the child's objection as narrated by
Dr Edward. Cristina had still been 7 years old at the time of that report albeit that she had
attained the age of 8 on the date of the final hearing before the Lord Ordinary. It was
noteworthy that the child had not identified any negative features of her life in Russia.
While she had spoken positively about her life in Scotland, she had referred also to good
memories of her life with her mother in Russia. Counsel queried whether Dr Edward had
been correct to state (at paragraph 2.6 of her report) that Cristina had not seen her mother
"for some months" by the time of interview. The petitioner had visited Scotland at the end
of 2023, leaving on 1 December, and the child's views had been elicited on 31 January 2024.
9
On her return to Russia the petitioner had retained contact with Cristina through video on
three to four occasions per week. In contrast the respondent had not facilitated video
contact since the Lord Ordinary's decision other than on one occasion.
[18]
It was submitted under reference to the dictum of Baroness Hale in the case of In
Re M that the court must assess the nature and strength of the child's objection when
exercising a discretion whether or not to make an order for return. The Lord Ordinary in
this case had failed to do so. Had she addressed those issues, the Lord Ordinary would
have observed that the nature of the objection in this case was narrow in focus and in scope.
While Cristina had said that she wanted to live in Scotland with her father, she had
expressed a desire to maintain meaningful contact with her mother. In the circumstances of
the case that was a forlorn and unrealistic desire. It was acknowledged that following the
decision of the Russian court the mother had taken the child a long distance away from her
home in Sakhalin Island where her father then remained. However, the Russian court had
made a determination as to the best interests of the child in 2020 following a thorough
examination of evidence including a psychological analysis. At that time the court had
found that Cristina's primary attachment was to her mother.
[19]
Dr Edward's report did not permit a conclusion about where Cristina's primary
attachment lay in 2024. It had not been within Dr Edward's remit to look at attachment,
simply at the issue of the child's objection to being returned to Russia. There was no
credible or reliable material to suggest that attachment had changed, simply that the child
stated she was fond of her father. The child had been in the care of her father since
August 2023, an appreciable period of time which no doubt underpinned what the child had
said. It was acknowledged that the mother's moves to Kazakhstan and then to Chechnya
had thwarted the contact ordered by the Russian court. The backdrop to this case had been
10
actings on both sides that interrupted the child's relationship with each of her parents at
different times.
[20]
Counsel submitted that the child's view amounted to no more than wanting to
maintain a positive relationship with both parents. While she may have stated an objection
to being returned to Russia, that had to be placed in context. Given that Cristina was clear
that she wished to see her mother even if she did remain in Scotland, the petitioner's
evidence should have informed the Lord Ordinary about the difficulties of travel given visa
and economic restrictions. Those difficulties were exacerbated by the birth of the child with
whom she had been pregnant at the date of the hearing. For those reasons the nature of the
child's objection, which was to a return but coupled with a desire to continue to see her
mother, could not be fulfilled and the Lord Ordinary had failed to assess that.
[21]
While the child's objection had been clear and consistent that did not mean it had
strength. The objection had been a modest one. In any event, when the Lord Ordinary came
to exercise her discretion the broader welfare considerations should have led to a conclusion
that Cristina should be returned to her mother's care. The correct approach would have
been to give Cristina's objection relatively little weight and to look at the matter more
broadly. There was some undisputed material supporting an absence of serious welfare
concerns should Cristina be returned to the mother's care. In contrast, welfare concerns
would arise on a refusal to return the child because she was being kept away from her
mother who had been her primary carer until August 2023. Ms Clark accepted that
individual facts required to be assessed in exercising a discretion and that it was not a tick
box exercise. Nonetheless, it was a striking feature of this case that this was a very young
child. There were themes emerging from the jurisprudence that included greater weight
being given to older children. That was entirely absent in this case. Further, in other cases
11
the nature of the objections had often been emphatic when return was ultimately not
ordered. Counsel had been unable to identify any case in which a singleton child of
Cristina's age had successfully objected to a return under the 1980 Convention. A number of
cases were cited to illustrate that point. Although it was accepted that Dr Edwards had
found that Cristina's views were free of influence, a younger child might be more easily
influenced than an older one.
[22]
In accordance with this jurisdiction's domestic obligations, which now effectively
include Article 12 of the United Nations Convention of the Rights of the Child, Cristina had
been given the opportunity to state her views and had done so. Intellectual maturity did not
equate with emotional maturity. Cristina's domestic experience of life until 2023 was a
Russian life. She would identify as a Russian child. This case could be contrasted with that
of PH, petitioner where the child had resided in Scotland until the age of 12. He had then
lived in Norway, a country to which he objected to being returned "most strongly and
unambiguously". In W v A a 10 year old child had expressed a clear reason for not liking
Poland because the situation there was "mega crowded". This case was not analogous with
those examples.
[23]
In relation to the father's position, he had contended that he had medical difficulties
that prevented his return to work and to Russia. However an email sent by his employer
indicated that certainly in January 2024 a recovery within six months and a resumption of
the services provided there was not ruled out. He had failed to show that there was a clear
impediment to him returning to Russia with or without the child.
[24]
The Lord Ordinary had not listed and analysed any factors other than Cristina's
young age. While she had acknowledged that the mother had been the child's primary
carer, she did not explain what weight she had attached to that and why she had done so.
12
There had been no assessment at all of the mother's relationship with the child. The
Lord Ordinary's conclusion in paragraph 83 of her opinion illustrated the complete absence
of consideration of the significance of the mother child relationship. It was accepted that a
Lord Ordinary in a case of this sort was not engaged in making findings in fact, but was, it
was submitted, required to undertake at least a broad analysis of relevant aspects of welfare.
The focus of the decision was on the considerable weight attached to the child's objection
but an explanation of how that was balanced against other factors was absent. The effect of
the Lord Ordinary's decision was to cede jurisdiction in relation to the substantive welfare
decisions about Cristina to the Scottish courts. This would place the reclaimer at a material
disadvantage given that she has care of a recently born infant and would be litigating from
afar. Given the length of these proceedings, habitual residence had "come and gone".
[25]
If the Lord Ordinary had erred this court could look at the matter of new. In that
event, it would have to be acknowledged that the child has now been present in this
jurisdiction for almost a year rather than the six to seven months of residence when the
Lord Ordinary heard the case. That said, if looking at matters at the current time, the birth
of the child's half sibling was significant. The retention of Cristina in Scotland was
depriving the newly born baby of kinship with her. That factor was not in existence when
the Lord Ordinary had determined the case. While Cristina had now completed a full
academic year in Scotland she had told Dr Edward that she was missing friends in Russia.
The decision of the Russian court from 2020 was still relevant. The respondent had taken no
steps to vary or enforce it despite the disruption of operation in contact that the petitioner's
changes of residence had caused. There was material lodged to support the suitability of the
education available to the child were she returned to Russia.
13
Submissions for the respondent
[26]
Counsel for the respondent pointed out that it had been a matter of concession at
first instance that Cristina had objected to being returned to Russia and that she had attained
an age and stage of maturity which made it appropriate to take account of her views.
Accordingly the Lord Ordinary had been engaged in the exercise of a discretion. This court
could only interfere with that if that discretion had been exercised upon a wrong principle
or was otherwise "plainly wrong". The arguments that had been presented by the reclaimer
essentially went to the weight to be attached to various factors but it amounted to nothing
more than a disagreement with the Lord Ordinary's conclusions.
[27]
Reading the Lord Ordinary's opinion as a whole, it was evident that she had set out
in some detail the background circumstances and the material upon which the exercise of
the discretion was made. It was perfectly appropriate to attach significant weight to the
reported conclusions of Dr Edward, whose views had support in the affidavit evidence from
others including Cristina's current school teacher and a friend of the respondent whose
evidence is referred to at paragraph 32 of the Lord Ordinary's opinion.
[28]
There was no proper basis for suggesting that the objection of the child was not
sufficiently strongly articulated. Dr Edward had described Cristina's objection as "clear and
well-reasoned" (at paragraph 2.10). Section 3 of her report dealt thoroughly with the issue
of whether there had been parental influence and found that there had not. Some of the
extraneous factors mentioned by Dr Edward, such as Cristina's presentation and her being
embedded and integrated into her school community in Scotland, fed into the strength of
her objection. Regardless of the lack of specific reference to strength, it was reasonable to
conclude that Cristina's objection to being returned to Russia was a strong one. The child
had been drawing on her own lived experience which included having been taken
14
6,000 miles away from her father with whom she had a close relationship. It was
abundantly clear from what she said to Dr Edward that she did not wish to be parted from
him again in that way.
[29]
Counsel enumerated 12 factors which the Lord Ordinary had taken into account in
the exercise of her discretion and on which she was entitled so to rely. These included:
the totality of Dr Edward's report;
the nature of the child's objection;
the child's age and maturity;
the lack of any influence by the respondent in relation to the child's views;
the circumstances in Russia prior to Cristina's departure from Scotland;
Cristina's integration into life in Scotland and her happiness here;
the other evidence relating to Cristina's current circumstances;
the fact that Cristina had positive memories of Russia and that the petitioner
had been her primary carer;
Cristina's mention to Dr Edward of difficult times particularly during and
after the parties separation and times apart from her father;
the impact of the petitioner's own behaviour on the child including the
petitioner speaking negatively about the respondent and the child not being
confident that she would be permitted to see her father in the event that she
returned to Russia;
the lack of any serious welfare concerns for Cristina in Russia;
Cristina being reported as having done well at each of the schools she
attended when in the primary care of the petitioner.
15
[30]
It was for the Lord Ordinary to balance all of these factors and attach such weight to
them as she considered appropriate. Any issues of financial difficulties or visa problems for
the mother had not been raised in any concrete way at first instance. The Lord Ordinary had
not been dealing with welfare issues in relation to residence and contact. These would be
dealt with if the litigation about those matters continues and substantive welfare decisions
require to be made.
[31]
It was not sufficient to overturn the decision at first instance that the Lord Ordinary
had not made a list of all of the broader welfare considerations she took into account. She
had made specific reference to the petitioner having been the child's primary carer (at
paragraph 84). It had to be inferred that all of the material narrated in detail had been relied
upon to some extent. Contrary to the submissions made on behalf of the petitioner, the
respondent was not opposed to contact between mother and child. He had instructed a
child psychologist with a view to addressing Cristina's current refusal to communicate with
her mother. There had been very regular contact between Cristina and the petitioner in
November 2023 during the mother's visit to the UK. She had returned to Scotland in March-
April 2024 and had enjoyed contact with Cristina on six occasions. The petitioner's stated
concern about the future of contact had no validity. In any event, the Lord Ordinary had
been aware of the geographical issues in this case that would render future issues of contact
complex.
[32]
The petitioner had produced a number of first instance decisions and one appellate
decision, as examples of the age of children whose objections had been successful. None of
these was particularly relevant given the concession that the Lord Ordinary was engaged in
the exercise of discretion. All such cases are extremely fact specific. The Lord Ordinary had
set out the applicable principles appropriately and had dealt with them. Unlike the situation
16
in W v A, where the issue of the exercise of discretion had been before the Lord Ordinary
but had been ignored, no such situation arose here. In the absence of any glaring error, the
petitioner simply did not get to the point where this court could decide the matter of new.
[33]
It could not be said that the Lord Ordinary had failed to adopt a child centric
approach. By giving very considerable weight to Cristina's views that was exactly what had
been done. It was not wrong to focus on the child and her objections in weighing up the
various factors. As the Lord Ordinary had also attached weight to the policy of the
Convention and the background of the mother having been the primary carer, her decision
could not be faulted. If that was wrong and the court required to look at the matter of new,
the same decision should in any event be reached. All of the factors relevant to the
Lord Ordinary's decision were still relevant. In addition to those listed, it could be taken
into account that the abduction was not planned and that there has now been a passage of
time approaching a calendar year which meant that a swift return to Russia was no longer
possible. While that was not the fault of the petitioner, it was a relevant fact. This court
could also take into account that the mother is currently in hospital in Kazakhstan following
the birth of her second child and so no immediate return to Russia could take place. The
relatively young age of the child was again just a fact. This court would require to look at
this particular child and her particular stage of maturity.
Decision
[34]
The undisputed facts of this case illustrate that Cristina had not enjoyed a completely
settled existence in one location prior to her retention in Scotland in August 2023. Some
terms of the 2020 order of the Russian court had, by 2021, been departed from through the
petitioner's move from Sakhalin Island to Kazakhstan and then to Chechnya. While the part
17
of the court's order providing that Cristina would live primarily with her mother was
complied with, the regular and frequent contact between father and child ordered by the
Russian court could no longer take place given the 6,000 mile distance. Further, when the
Russian court looked at this matter in 2020 the petitioner had not become seriously involved
with her current husband. Her remarriage and various moves between Kazakhstan and
Chechnya were not anticipated. Accordingly, Cristina's life had been subject to significant
changes in the period 2020-2023. The assessment of the child's primary attachment to the
mother was, by August 2023, some three years out of date and is now almost four years old.
To put it another way, Cristina was approximately half her current age when the Russian
court order was made; its significance has been superseded by a number of important events
in her life since then.
[35]
As the child's ability to object to a return to Russia was accepted at first instance (and
there was no attempt to withdraw that concession before us), the decision to be made by the
Lord Ordinary was indisputably one for the exercise of her discretion. She required to take
into account all of the available material and conduct a balancing exercise. While she did
not list every relevant factor, it is clear from the detail in which Dr Edward's report and
conclusion is analysed at paragraphs 74-84 of the opinion, that she attached considerable
weight to the child's stated objection. As against that, the object of the Convention is
specifically taken into account (paragraph 77) together with the petitioner's role as primary
carer and broader welfare considerations in relation to Cristina's current life in Scotland.
[36]
The focus of the argument advanced by counsel for the petitioner was based on there
being a requirement to consider the nature and strength of the child's objection, something
she contended that the Lord Ordinary had failed to do. However, we note that in the
passage in the case of In re M and another (Children) (Abduction: Rights of Custody)
18
[2008] 1 AC 1288, at paragraph 46, Baroness Hale states that "once the discretion comes into play
the court may have to consider the nature and strength of the child's objections ..."
(emphasis added). Where a discretion is being exercised, it is for the first instance decision-
maker to decide what features of the particular case before her are most influential.
Accordingly, while there are many cases in which the emphatic nature of a child's stated
objection may be highly relevant, in other cases other factors may be more important. What
the Lord Ordinary required to do was to examine carefully the available report setting out
the child's stated objection, the reasons for it and how those fitted with the other material
relative to welfare considerations. Indisputably that is how she approached the matter in
this case.
[37]
For example, the Lord Ordinary considered it relevant that Cristina's views had been
formed in a context where there had been a significant period during which she was
deprived of regular contact with her father. This had clearly had an impact on the child who
was not confident that she would see her father as much as she would like if she were
returned to Russia. Cristina's views were said by Dr Edward to be grounded in reality and
were described as "clear and consistent". We cannot accept that the absence of a reference to
strength somehow undermines the impact of the views expressed. A clear and consistent
view may be more powerful than those expressed vehemently but inconsistently. That was
for the Lord Ordinary to consider in light of the circumstances of the case.
[38]
Many of the authorities in cases of children's objections refer to greater weight being
attached to the views of an older child. There may be good reason for that, as a matter of
generality, although given the peculiarly fact specific nature of cases of this sort, we are not
sure that such a general statement provides any real assistance. There are examples where
the objections of relatively young children have been accepted for the purposes of Article 13
19
of the 1980 Convention - eg In re M (Children) [2016] Fam 1; MP petitioners [2023] CSOH 58
and W v A 2021 SLT 62. In our view, it does not detract from the impact of Cristina's
objections that she was making those as a singleton child rather than within a group of
siblings. Her intellectual ability is beyond her chronological age and her account to
Dr Edward was well reasoned.
[39]
Many of the submissions made to us, such as issues of attachment, the recent birth of
the petitioner's child, the costs and practical difficulties of contact and so on, related to
matters that would be more relevant to a substantive welfare determination. The exercise in
which the Lord Ordinary was engaged was a decision about whether to accede to Cristina's
stated objection to being returned to Russia as the state of habitual residence. In that
context, we are not persuaded that her views ought to have been given "relatively little
weight" as counsel maintained.
[40]
In all the circumstances, in refusing the reclaiming motion we concluded that the
Lord Ordinary's decision could not be characterised as "plainly wrong". Nothing in her
opinion indicated that she had erred in the exercise of her discretion. The decision reached
was reasonably available to her. Accordingly, there was no need for us to consider the
matter of new. Had we done so, we would have had regard in particular to the passage of
time. Cristina has been settled in Scotland for a full academic year now, longer than any
period during which she was residing in Chechnya.
[41]
Decisions of this sort are restricted to the question of whether a child should be
returned to the state in which she was habitually resident at the time of the wrongful
retention. Longer term decisions about Cristina's welfare, including the extent to which she
should spend time with each parent, have yet to be determined. Self-evidently, it would be
in her interests for those substantive welfare decisions to be taken without further delay.
20
The decision taken in this case to refuse an order for Cristina's return to Russia has no real
bearing on that important matter. We hope that discussions about arrangements for
Cristina's future care and for contact can now commence.
