D v D
| Jurisdiction | Scotland |
| Judgment Date | 19 June 2001 |
| Docket Number | No 3 |
| Date | 19 June 2001 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Carloway
Children and Young Persons—Child Abduction—Whether court could draw conclusions where affidavits were contradictory—Whether evidence to support finding as to habitual residence—Child Abduction and Custody Act 1985(cap 60)1
Evidence—Affidavit Evidence—Child Abduction—Whether court could draw conclusions where affidavits were contradictory
The Child Abduction and Custody Act 1985 makes provision for the return of children to a country in which they are habitually resident.
The petitioner was the father and the respondent the mother of child S. The child was born in Scotland on 19 December 1995. During 1999 and early 2000, the family was living in Konstanz in Germany. In September 2000 they moved to a flat in Kreuzlingen which was in the same conurbation as Konstanz but in Switzerland. On 11 October 2000, the respondent left Switzerland and came to Scotland with the child. An application by the Swiss authorities to the Scottish Ministers led to a petition to the Court of Session under the Act. On 4 May 2001 the Lord Ordinary ordered the return of the child to Switzerland, holdinginter alia that the child was habitually resident in Switzerland at the time of his removal to Scotland. There had been differences between the information in the affidavits from the petitioner and the respondent before the Lord Ordinary, and the respondent argued that the Lord Ordinary had erred in accepting one vision rather than the other, and that where there were contradictions between affidavits, and no other evidence to support a conclusion one way or another, no conclusion could be drawn.
Held that (1) where there were contradictions between affidavits, and no other evidence to support a conclusion one way or the other, no conclusion could be drawn by the court(p 37D); and (2) there being no evidence on which to base any inference as to the parties' intentions as to habitual residence, and the period spent in Switzerland being too short to justify an inference that anyone had acquired a habitual residence there, there could be no finding of habitual residence and in the absence of such a finding there was no basis for the petitioner's claim (pp 40H–41A); and reclaiming motionallowed and prayer of petition refused.
J (A Minor) (Abduction) (Re) [1990] 2 AC 562 commented upon.
ED petitioned the Court of Session under the Child Abduction and Custody Act 1985 for the return of a child. SG or D was called as respondent. The first order in the petition was made on 6 March 2001. Affidavits and productions were lodged and on 4 May 2001 the Lord Ordinary ordered the return of the child to Switzerland. The respondent reclaimed.
The full facts and averments of the parties are sufficiently set forth in the opinion of the court.
Cases referred to:
AF (A Minor) (Re)UNK [1992] 1 FCR 269
Cameron v CameronSC 1996 SC 17
Dickson v DicksonUNK 1990 SCLR 692
J (A Minor) (Abduction)(Re)ELR [1990] 2 AC 562
Mozes v Mozes, US Court of Appeals Ninth Circuit, filed January 2000
Textbooks etc referred to:
Clive, The Concept of Habitual Residence 1997 JR 137
The cause called before an Extra Division, comprising the Lord President (Rodger), Lord Coulsfield and Lord Cowie for a hearing on the summer roll on 31 May 2001.
At advising, on 19 June 2001, the opinion of the court was delivered by Lord Coulsfield.
Opinion of the Court—[1] The petitioner is the father and the respondent is the mother of a child, S, born in Scotland on 19 December 1995. During 1999 and the earlier part of 2000, the parties and the child were living in the area of Konstanz in Germany. In September 2000 they moved to a flat in Kreuzlingen, which is part of the same conurbation as Konstanz but is in Switzerland. On 11 October 2000, the respondent left Switzerland with the child and come to Scotland. The petitioner did not take immediate steps to locate the respondent or the child but eventually the Swiss authorities, at the petitioner's instigation, made an application to the Scottish Ministers. That led to the present petition under the Child Abduction and Custody Act 1985. The first order in the petition was made on 6 March 2001. Affidavits and productions were, in due course, lodged and on 4 May 2001 the Lord Ordinary ordered the return of the child to Switzerland forthwith. The respondent now reclaims against that decision.
[2] The Lord Ordinary dealt with three issues. The first was whether the child was habitually resident in Switzerland at the time of his removal to Scotland; the second was whether the petitioner had acquiesced in the removal of the child from Switzerland; and the third was whether there was a risk that the child would be put in an intolerable situation if an order for his return to Switzerland was made. The Lord Ordinary also had to deal with certain submissions made on behalf of the respondent in regard to the procedure which had been followed and the use of certain documents and affidavits. The Lord Ordinary decided all these issues in favour of the petitioner. In the reclaiming motion, the respondent sought to challenge the Lord Ordinary's decision on the question of the habitual residence of the child but did not reclaim against his decision on the questions of acquiescence or the risk of an intolerable situation. So far as the procedural matters are concerned, some reference was made to them in the course of the hearing on the reclaiming motion, but it became clear that these issues had no material bearing upon the reasons for the Lord Ordinary's decision.
[3] The Lord Ordinary narrates the history of the parties' relationship and marriage in detail. Most of that history was not a subject of dispute in the reclaiming motion and it is not necessary to rehearse all of if. In summary, the petitioner is 42 years of age and is a German national. He is now employed as a senior registrar in cardiothoracic and vascular surgery at two hospitals, both owned by a Swiss company, one of which is situated in Konstanz in Germany and the other in Kreuzlingen in Switzerland. The respondent is 36 years of age and Scottish. She had a difficult childhood, being brought up in homes and foster care, but qualified as a nurse and later obtained a University degree, and is now employed as a staff nurse in a care home in Scotland. She was previously married but divorced in 1995. The...
To continue reading
Request your trial
- A, Petitioner (Oh)
-
T.l.m.p. V. A.p.
...72; Soucie v Soucie 1995 SC 134 at 137B-I per Lord Sutherland delivering the Opinion of the Court but cf. C v C 2003 SLT 793 at § 8; D v D 2002 SC 33 at §§ 8, 18 per Lord Coulsfield delivering the Opinion of the Court citing AF (A Minor) (Re) 1 FCR 269.] The primary issues of fact [23] As s......
-
Petition Of Hib For An Order Under The Child Abduction And Custody Act 1985
...parties' relationship and the reasons for the breakdown of the marriage were in dispute and it was agreed that, on the authority of D v D 2002 SC 33 I could not prefer one party's affidavit over another in relation to these disputed issues unless there was other material allowing me to conc......
-
In The Petition Of Ja For An Order Under The Child Abduction And Custody Act 1985
...the basic facts are undisputed. Where there was conflicting evidence I considered that I was bound to follow the approach outlined in D v D 2002 SC 33 in which it was made clear that where there were conflicting affidavits the court could not prefer one over another unless there was other m......