Petition Of M For An Order Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Docket Number | P1582/04 |
| Date | 11 November 2004 |
| Court | Court of Session |
| Published date | 11 November 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P1582/04
| OPINION OF LADY SMITH in the Petition of M Petitioner; for An Order under the Child Abduction and Custody Act 1985 __________ |
Petitioner: Hayhow; Balfour & Manson
First Respondent: Scott; Bonar Mackenzie
Second Respondent: Mundy; Mowat Hall Dick
11 November 2004
Background:
[1]The child, S, who is the subject of this application, was born on 17 October 1992. He is, accordingly, now aged 12 years. He was separately represented. His mother, the first respondent, is a US citizen and his father, the petitioner, is Scottish. They were married in Scotland on 26 August 1988 and lived continuously in Scotland until July 2002. From 1997 to 2002, the family lived in Helensburgh. S attended primary school there. The first respondent was married previously and the daughter of that marriage, who is now 24 years old, lives in Glasgow and appears to have done so for some time. In July 2002, the family home in Helensburgh was sold and they moved to Ireland.
[2]The circumstances in which they came to move to Ireland were, for the purposes of the first respondent's argument that she did not become habitually resident in Ireland, in some respects, disputed. However, it appeared to be agreed that the impetus for the move was that Helensburgh was proving to be too expensive. At that time, the petitioner's business was not doing well. That business involves the use and sale of information technology for the tourism and cultural heritage, with a particular focus on the golf industry. It had got to the stage that the prospects of moving the business forward in Scotland were remote but investigations as to prospects of furthering the business in Ireland looked good. It is not entirely clear why that was so but it appears to have had something to do with the costs of running the business being lower in Ireland and with there being government funding and support available there which is not available in Scotland. However, it did not seem to be disputed that the feeling was, in 2002, that they needed to move out of Scotland for the purposes of the petitioner's business and the first respondent did not dispute the petitioner's current assertions that he has good reason to be optimistic about the prospects for the business at the moment. Amongst other things, he has a government funded contract to carry out work in connection with what he refers to as his antique golf business and he is hopeful of selling the website side of his business activities. The first respondent had not been in permanent employment in Scotland and by July 2002, a short term contract she had had, involving her working as a research assistant, had come to an end.
[3]The petitioner and first respondent did not purchase a house in Ireland at first. They rented a property which proved to be unsuitable. They tried to purchase a cottage but the sale fell through and, in April or June 2003, they moved to a better rented property. It is described in the affidavits as being a modern four-bedroomed house and as being spacious. Whilst the first respondent and S were critical, justifiably it seems, of the quality of the first rented property, they state no criticism of the quality of the second rented house. They have, this year, bought a farmhouse which is, at present, derelict. It was purchased with the intention of renovating it.
[5]S was enrolled at a primary school, in Ireland, in 2002, and completed two full academic years there. During school holidays, he and the first respondent usually visited Scotland. On 1 July 2004, they left Ireland for such a visit. They stayed initially with the petitioner's mother. They then, it seems, moved between Glasgow, where they stayed with the respondent's daughter, and Helensburgh, where the points of contact were old friends. At some point, the exact date of which is not entirely clear, the first respondent decided that she was not going back to Ireland. That decision seems to have been made very shortly before 23 August 2004, on which date she enrolled S at a school in Helensburgh. The first respondent and S have, since that decision was made, moved addresses between friends' houses and hotel accommodation. The first respondent is, though, hopeful of obtaining rented accommodation once her present application for Housing Benefit has been processed. In terms of the relevant Irish legislation, the Guardianship of Infants Act 1964 s.6(1), the petitioner and first respondent are joint guardians of S.
The present proceedings:
[6]The first respondent consulted a solicitor in Dumbarton and, on 20 September, an action was raised in Dumbarton Sheriff Court in which she sought orders interdicting the petitioner from removing S from her care and control and finding her entitled to have him reside with her. Meanwhile, the petitioner had taken legal advice in Ireland and he completed and signed the appropriate forms to enable the Irish central authority to seek the assistance of the central authority in this jurisdiction under and in terms of the Hague Convention on the Civil Aspects of International Child Abduction, on 13 September 2004. The request followed and the present petition, in which the petitioner seeks an order for the return of S to Ireland, was lodged on 7 October 2004.
[7]Answers were lodged on behalf of the first respondent and, separately, on behalf of S. The first respondent opposed the granting of the order sought on two grounds, firstly, that S was not habitually resident in Ireland at the time that he was retained in Scotland and, secondly, that he objected to being returned. S opposed the granting of the order sought on the ground that he objected to being returned. At a hearing on 15 October 2004, it was agreed that S should be interviewed by a child psychologist with a view to determining his age and level of maturity, whether he did object to being returned to Ireland, and if so, why, whether his views were independent of parental influence and whether he appreciated that the purpose of a return would be to enable the court in Ireland to make the decisions about where his long term future should lie. Counsel drew my attention to the case of W v W 2003 SLT 1253 and what was said there by the Inner House regarding the procedures that should be followed when seeking to ascertain a child's views when an objection to returning is averred. Counsel also agreed that the child psychologist appointed should, if possible, be drawn from a list of provided by them. I pronounced an interlocutor appointing Mrs B, one of the psychologists on the list, to interview S to ascertain his views using terms which sought to reflect, as closely as possible, the wording used in the opinion of the court in W v W.
[8]A hearing at which evidence was led from Mrs B and submissions were made on that and the evidence contained in a number of affidavits and other documents lodged by all parties took place on 3, 4 and 5 November 2004. The issues for determination remained those identified in the pleadings, namely:
1. Whether S was habitually resident in Ireland immediately prior to his being retained in Scotland?
2. Whether or not S objects to being returned to Ireland and, if so, whether or not an order for his return should be pronounced, bearing in mind the terms of Article 13 of the Convention?
Ultimately, however, it was recognised on behalf of the first respondent, that her opposition should, given that S was separately represented, concentrate on the first of these issues.
Habitual Residence:
[9]The starting point is to consider the terms of the Convention which include, at Articles 3 and 4:
"Article 3
The removal or the retention of a child is to be considered wrongful where -
(a) it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
...
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. ..." .
Accordingly, unless the petitioner can demonstrate that S was habitually resident in Ireland when, in about the middle of August, he was retained in Scotland, he cannot invoke the protection of the Convention.
[10]Parties were in agreement that the question of the place of a child's habitual residence is primarily a question of fact which falls to be determined in accordance with the law of the requested state (Re: P 1995 1 Fam LR 831; Dickson v Dickson 1990 SCLR 692).
Submissions for the petitioner ( habitual residence):
[11]Counsel for the petitioner submitted that it was clear that S had become habitually resident in Ireland. He said that habitual residence meant one which was being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time. In the case of a child, its parents' will would determine the place of habitual residence. "Habitual residence" was not a term of art and should be given its ordinary and natural meaning; to acquire it, a settled intention and an appreciable period of residence were required (Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 per Lord Brandon at 578). The court should not embark on a detailed enquiry or analyse the matter too deeply (Re: B (Minors: Abduction) [1993] 1 FLR 993). Rather, a broad brush approach should be adopted. It was more a case of "knowing it when you see it". The appreciable period of time required would depend on the circumstances of the case. No minimum period was necessary (Cameron v Cameron 1996 SC 17).
[12]S had, it was submitted, lost his Scottish habitual residence when the family moved to Ireland in 2002 and...
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