P.h. (ap) For An Order For The Return Of A Child Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2014] CSOH 79 |
| Docket Number | P177/14 |
| Court | Court of Session |
| Published date | 30 April 2014 |
| Date | 30 April 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 79 | |
| P177/14 | OPINION OF LORD DOHERTY in the Petition of P H (AP) Petitioner; for An order for the return of a child under the Child Abduction and Custody Act 1985 ________________ |
Petitioner: McAlpine; Morisons, Solicitors
Respondent: Malcolm; Balfour and Manson LLP, Solicitors
30 April 2014
Introduction
[1] The petitioner and the respondent were married in 1993. They are both Scots. They set up home in Aberdeenshire. They had two children, a son J (now aged 18) and a daughter ("K") (now aged 13 years and 9 months). The petitioner and respondent separated on 1 November 2007. The separation was acrimonious. Initially both children continued to live with the petitioner. Since about 2009 the petitioner's son has lived with the respondent and there has been minimal contact between mother and son. The respondent continued to exercise substantial residential contact to K. Periods of contact were arranged informally. Up until the end of Primary 6 K continued to attend the same primary school she had always attended. However, the petitioner moved home to a different area of Aberdeenshire in about 2011 and K moved school for Primary 7. The parties were divorced in 2010. Both have since remarried other partners. In March 2012 the petitioner, her husband ("H") and K moved to Norway in connection with H's work. There was some dispute between the parties as to the notice which had been given by the petitioner to the respondent of the move to Norway, but on 7 November 2012 the respondent signed a declaration consenting to K's residence there (see 6/4 and 6/5 of process). K attended a British School near her home in Norway. Residential contact continued during school holidays. On 1 October 2013 K came to the respondent's home on a contact visit. She was supposed to return to Norway on 12 October 2013. She did not return. Since then K has appeared to be firm in her resolve not to return to Norway. She has lived with the respondent and her brother and has attended the local High School.
[2] The petitioner travelled to Scotland to bring K back. She remained here for about three weeks in order to seek to achieve that. She involved the police, the social work department, and the press. She attended at K's school and home, and sought to speak to her on, and in the vicinity of, the school bus. She attended at the home of K's paternal grandparents. She distributed leaflets outside the places of work of the respondent and his wife. She spoke in person with K on a few occasions, but, understandably, a good deal of what she said to her appears to have been emotive or distraught. She has not seen K since about the beginning of November 2013. There has been some measure of telephone, Facebook and email contact between them since, but this does not appear to have been extensive. There has also been some communication by way of letters sent by the petitioner to K.
[3] The petition was presented on 19 February 2014. A first hearing was held on 6 March 2014. At that time, on the joint motion of the parties, the court appointed Professor James R G Furnell, Consultant Psychologist, to prepare a report for the assistance of the court. His remit was consideration of the following questions:
"1. Does the child object to being returned to Norway?
2. Is the child of an age and maturity which is appropriate to take account of her view?
3. What are the child's reasons for any objection to return to Norway?
4. To what extent are those views rooted in reality?
5. To what extent, if any, have those views been shaped by undue parental pressure either direct or indirect?"
[4] The matter called before me on 10 April 2014 for a second hearing. In addition to Professor Furnell's report dated 26 March 2014 (no. 12 of process) parties had lodged affidavits (of the parties, H, J, her paternal grandfather, her maternal grandfather, and two maternal aunts) and productions. The productions included a school report from K's current school and one from her school in Norway; email correspondence; Facebook messages; and certain correspondence relating to child support payments. No oral evidence was led. The parties lodged a "Joint Note of Agreed and Disputed Issues" in the following terms:
"Following their divorce both parties retained parental rights and responsibilities in relation to the child K.
Immediately prior to K returning to Scotland in October 2013 the Petitioner had and was exercising and enjoying rights of custody in Norway in terms of article 3 of the Convention on the Civil Aspects of International Child Abduction 1980 [the 'Hague Convention'].
Whilst in terms of the pleadings and affidavits to be lodged there is a factual dispute over the manner in which the move to Norway took place, it is not disputed that the Respondent subsequently gave formal consent to K residing there with the Petitioner, and as a consequence K's habitual residence became Norway in 2012.
It is agreed that the child K remaining in Scotland amounts to a 'wrongful retention' in terms of article 3 of the Hague Convention.
It is agreed that the child K has attained an age and degree of maturity at which it is appropriate to take account of her views.
The disputed issue is whether the court should exercise its discretion in terms of article 13 of the Hague Convention, and refuse to order return of the child K where she objects to being returned."
Articles 3, 12 and 13 of the Hague Convention
[5] By virtue of section 1 of, and Schedule 1 to, the Child Abduction and Custody Act 1985 certain provisions of the Hague Convention (including articles 3, 12 and 13) have the force of law in the United Kingdom. Article 3 provides:
"The removal or retention of a child is to be considered wrongful where - (a) it is in breach of rights of custody attributed to a person ...under the law of the State in which the child was habitually resident immediately before the retention; and (b) at the time of removal or exercise those rights were actually exercised ..."
Article 12 provides:
"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 since the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith ..."
Article 13 provides:
"...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."
Professor Furnell's report
[6] Professor Furnell interviewed K on her own in his consulting room in Aberdeen on two occasions for a total period of 3 hours. He also interviewed the petitioner (by telephone) and the respondent (in person). He concluded that K "objects most strongly, and unambiguously, to being returned to Norway" and that she "is of an age and degree of maturity where her views ought to be given some weight". He observed that "she presents as someone of more insight and maturity than might be implied from her chronological age". He recorded her reasons for not wishing to return as including:
"1) A sense that, by living in Norway (or elsewhere) she has been removed from a wide network or relationships both domestic and in the wider community which includes both close and extended paternal and maternal families, peers, and friends of long standing and more recent acquaintance. Further, she lost opportunities for involvement in a variety of activities which involved her with family, friends, and in the local community, with which she appears to identify strongly.
2) That she feels a particular closeness to her older brother J and wishes to maintain a relationship with him.
3) That she has experienced three changes of school in approximately 3 years, and that at the time of her refusal to return to Norway in October 2013 was likely to be moved a fourth time to a school in Angola. Further, even if the prospect of a move to Angola no longer applies, she thinks it likely that, should she return to her mother's care, she will be rapidly moved to London to, yet again, another school. K indicates that she is now settled and reintegrated into her secondary school ... within the Scottish education system, and she wishes the consistency and stability to complete this phase of her education in that setting.
4) If required to return to Norway, and she remained at the same school in the same community, the possibility of bullying could continue.
5) That K likes living in her paternal home in [ ..], and is 'comfortable' there. In contrast, she feels that her domestic circumstances and relationship with her mother are more difficult.
Professor Furnell considered K's views to be rooted in reality. He observed:
"Much of the above appears to reflect the reality of what is available to K in Scotland, in terms of families, people, relationships and activities with which she is connected. By definition these features are not available elsewhere, for example in Norway.
It appears that K places great weight on her relationship with her brother J, and...
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