Reclaiming Motion In Petition Under The Child Abduction And Custody Act 1985 In The Case Of J.p. V. F.m.
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Drummond Young,Lord Wheatley |
| Neutral Citation | [2014] CSIH 19 |
| Court | Court of Session |
| Published date | 11 February 2014 |
| Year | 2014 |
| Date | 11 February 2014 |
| Docket Number | P1139/13 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 19 | |
| Lady Paton Lord Drummond Young Lord Wheatley | P1139/13 OPINION OF THE COURT delivered by LADY PATON in the petition of JP petitioner and reclaimer; against FM respondent: _______________ |
petitioner and reclaimer: M Clark; Simpson & Marwick
respondent: Hayhow; Morisons
11 February 2014
Child abduction
[1] The petitioner was born on 29 April 1971. He is a Canadian citizen, and lives in British Columbia, Canada. He has served in the Canadian Forces. After being honourably discharged in 1997, he worked as a fitness trainer, a skilled labourer, and a furniture-maker.
[2] The respondent was born on 30 September 1974. She is Scottish, and a trained nurse. She currently lives with her mother near Dunoon, Scotland, with M (born on 18 November 2010), the parties' child.
[3] This petition is brought under the Hague Convention (the Convention on the Civil Aspects of International Child Abduction) all as set out in Schedule I to the Child Abduction and Custody Act 1985. The petitioner seeks the return of M to British Columbia in order that the courts there may determine questions such as residence and contact. The matter came before Lord Armstrong on 29 November 2013. After hearing submissions, the court made avizandum. On 3 December 2013 the Lord Ordinary delivered an oral judgment. He sustained the second plea-in-law for the respondent, which was in the following terms:
"2. A period of more than one year having elapsed from the date of the wrongful retention in October 2012, and the child having settled in her new environment, the prayer of the petition should be refused."
He therefore refused the prayer of the petition. On 9 December 2013 the Lord Ordinary issued a written Note which inter alia incorporated the oral judgment. The petitioner reclaimed.
[4] In the reclaiming motion, it is no longer disputed that M was wrongfully retained in Scotland as from October 2012. The issue in dispute is whether the Lord Ordinary erred in holding in terms of article 12 of Schedule I to the 1985 Act that M had been demonstrated to be so settled in her new environment that, in the exercise of the court's discretion, she should not be returned to British Columbia.
Brief history of events
[5] In 2007 the respondent was working as a nurse in Vancouver. In August 2007 she met the petitioner on-line. They entered into a relationship. They began living together in 2009. Their child M was born on 18 November 2010, and both parents were involved in caring for her. About 10 months after the birth, financial constraints resulted in the respondent returning to work as a nurse. The petitioner looked after M while the respondent was at work.
[6] The parties experienced difficulties with finances and accommodation. Their relationship suffered. The respondent visited her family in Scotland, but always returned to Canada. However in July 2012 the respondent learned that her mother was unwell. On 21 August 2012 she travelled to Scotland with M. As the petitioner explains in his affidavit:
"8. ... [The respondent] downloaded a form from the internet which I think was some kind of government travel document to indicate that I was consenting to M being taken out of the country ...
9. The date which I inserted in the travel document for the return was 1 March 2013. [The respondent] and I understood her mother was quite ill and that it could take quite a while for her mother to recover ..."
[7] The parties kept in communication by telephone, e-mail and Skype. In October 2012 the respondent terminated the lease of the parties' apartment in Vancouver (for which she had been paying the rent). The petitioner reacted badly. His parents advised the respondent by e-mail dated 26 October 2012 that they were worried about him and had been unable to contact him. Ultimately the petitioner went to live with his parents in their four-bedroomed house in Port Moody.
[8] The parties' affidavits differ about the date when the respondent advised the petitioner that she was definitely not returning to Canada. The Lord Ordinary found that their relationship effectively ended in October 2012, and that is not now disputed. Some time later, the petitioner obtained legal advice. In paragraph 18 of his affidavit, he explains that on 2 July 2013 he e-mailed the British Columbia central authority requesting that they send him an application form for M's return. Matters were put in hand, and the present proceedings commenced in Scotland on 7 November 2013.
Article 12 of the Hague Convention
[9] Article 12 of the Hague Convention provides inter alia:
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment ..."
The Lord Ordinary's oral ruling on 3 December 2012
[10] The Lord Ordinary's ruling on 3 December 2012 was as follows:
"[1] This case concerns the issue of whether it is appropriate that the child [M] should be returned to her father, the petitioner, in Canada from where she was taken by her mother, the respondent, to Scotland. The matter is governed by the Child Abduction and Custody Act 1985 and by the Hague Convention on the Civil Aspects of International Child Abduction, to which both the UK and Canada are contracting states. I am grateful to counsel for their clear and focused submissions both in writing, and at the bar.
[2] No issue arises in relation to the exercise of Article 3 rights. The parties are agreed that immediately prior to [M's] wrongful retention, the petitioner was exercising such rights.
[3] The first issue which I must consider, in order to determine whether or not, for the purposes of Article 12 of the convention, the period of wrongful retention extended to more or less than one year, is when it can be said that the parties' relationship had ended. It was accepted that the commencement of wrongful retention began from that point. In that regard, I was referred to certain affidavit evidence, in relation to which I note the guidance set out in the case of D v D 2002 SC 33 and the need for extraneous evidence if conclusions are to be reached in considering affidavits which provide conflicting assertions of fact. With that in mind, I am persuaded by the submission for the respondent that consistency of a stated position, depending on its nature and extent, can constitute sufficient support to allow a distinction to be made between competing accounts and to allow a preference to be made. On that basis, having regard to the careful analysis of the email traffic between the parties, and between the respondent and others, to which I was referred, I prefer the respondent's position to the effect that the relationship effectively ended, in the sense that on an objective assessment of the language used by both parties, each was aware of that fact, in October 2012. That being so, accepting the approach of the parties to the exercise of Article 3 rights, I find that the wrongful retention did subsist for more than one year before the date of the raising of these proceedings.
[4] As to whether, for the purposes of Article 12, the respondent has demonstrated that [M] has established a settled life in Scotland, the question, as set out in Soucie v Soucie 1995 SC 134, is not just one of a balancing exercise between the requirements of the convention, on the one hand, and the interests of the child, on the other, but is one, (subject to the qualification expressed by Baroness Hale in the case of In Re M (Abduction: Rights of Custody) [2008] 1 AC 1288, at paragraph 47) where it clearly has to be shown that settlement in the new environment is so well established that it overrides the otherwise clear duty of the court to order the return of the child. I also recognise that the assessment of being settled must involve consideration of the physical element of being established in a community and environment, and an emotional constituent denoting security and stability, and that, in assessing the new environment, regard must be had to it encompassing place, home, school, people, friends, activities and opportunities
[5] In this case, insofar as the physical constituent of settlement is concerned, I was directed to evidence that [M] has been effectively based, in her home life [near Dunoon], but for some short breaks, since August 2012, that she has been attending a local nursery since January [2013], that she has been attending a Gaelic-based toddlers group since before that, and that she has been participating in other community based activities. Insofar as the emotional constituent is concerned, it was submitted that the evidence disclosed that, of her short life of just over 3 years, she had spent the majority of the developmental stage during which she would be expected to begin to form wider personal relationships, in her new environment, since leaving Canada. She has made friends at her playgroup and regularly sees her cousins, aunts and uncles and other extended family. She has a close relationship with her grandmother and the respondent's brother and sister. She has around her a strong support network. She has integrated into the community to an extent which provided security and stability which was more than could be derived only from her relationship with her mother. As regards future opportunity afforded by her new environment, the...
To continue reading
Request your trial
-
P.h. (ap) For An Order For The Return Of A Child Under The Child Abduction And Custody Act 1985
...the question of custody. In addition to the authorities mentioned by Miss Malcolm, Mr McAlpine referred to P v S 2002 Fam LR 2; JP v FM [2014] CSIH 19; Marshall v Marshall 1996 SLT 429; and C v C 2008 SCLR 29, 2008 SC 571. Discussion [9] It was common ground that K objected to her return to......