R, Petitioner
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lady Hale,Lord Clarke,Lord Wilson,Lord Hughes |
| Judgment Date | 22 May 2015 |
| Neutral Citation | [2015] UKSC 35 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 9 |
| Date | 22 May 2015 |
[2015] UKSC 35
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Reed
Lord Hughes
Appellant
Kate Dowdalls QC Alison Wild
(Instructed by Family Law Matters Scotland LLP)
Respondent
James Turner QC Ruth Innes
(Instructed by Macnabs LLP)
Intervener (Reunite International Child Abduction Centre)
Written submissions only
Teertha Gupta QC Michael Gration William Tyzack (Instructed by Dawson Cornwell)
Intervener (Children and Families Across Borders)
Written submissions only
Deirdre Fottrell QC Daisy Hughes Eleri Jones
(Instructed by Freeman Solicitors)
Intervener (International Academy of Matrimonial Lawyers)
Written submissions only
Timothy Scott QC
(Instructed by SKO Family)
Heard on 13 May 2015
(with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes agree)
The issue in this case is whether the court should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arises under article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985.
The children were born in France in August 2010 and June 2013. Their father is a French citizen who has lived in France all his life. He has a small business in France. Their mother is a British and Canadian citizen, who was born in Canada of a Scottish mother. She works from home for a Canadian employer. She and the father have never been married.
Until July 2013 the family lived together in France, visiting the mother's parents in Scotland from time to time. During July 2013 the mother and the two children came to live in Scotland. They did so with the agreement of the children's father. According to the father's affidavit, it had been agreed that the mother and the children should live in Scotland during her 12 months' maternity leave, returning afterwards to France. According to the mother's affidavit, it had been agreed that the family would move permanently away from France, although not necessarily remaining in Scotland beyond the duration of her maternity leave. The father was to join the rest of the family after the family home in France had been sold, and arrangements had been made in relation to the management of his business, and they would then decide where to settle in the longer term. What is uncontroversial is that the mother and children were to live in Scotland for the period of about a year from July 2013 during which she was on maternity leave.
Following their arrival in Scotland, the mother and children lived initially with the maternal grandparents. In August 2013 the family home in France was sold, the sale being completed two months later. The elder child also started to attend the local nursery in Scotland in August 2013, and has continued to do so since then. The father visited the rest of the family in Scotland for several days every month. The mother and children joined the father for a holiday in France in September 2013, and also spent 12 days with him in October 2013 at their former home in France, shortly before it changed hands. On their return to Scotland they moved into a rented house, adjacent to the maternal grandparents, which the mother and father had inspected together. The mother and children have lived there ever since.
On 9 November 2013 the mother discovered infidelity on the part of the father and told him that their relationship was over. On 20 November 2013 he was served with notice of proceedings in Scotland in which the mother sought a residence order in respect of the children, and interdict against the father removing them from Scotland.
In the present proceedings, brought under the 1985 Act and seeking an order for the return of the children to France, the father maintains that the initiation of the mother's proceedings was a wrongful retention within the meaning of the Hague Convention. That proposition is predicated upon the children's being habitually resident in France immediately before 20 November 2013. That is the question on which issue was joined in the courts below.
In the Outer House of the Court of Session, the Lord Ordinary, Lord Uist, identified the first question which he had to determine as being whether the children were habitually resident in France immediately before 20 November 2013. It was common ground that that question was to be determined in accordance with the guidance given by this court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60; [2014] AC 1 and In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75; [2014] AC 1017.
After summarising the evidence and the parties' contentions, the Lord Ordinary stated (para 7):
"After considering all the relevant evidence I am satisfied that the children had not immediately before 20 November 2013 lost their habitual residence in France. They had both been born there and lived there in family with their parents until 26 July. This was a French family living in France. There is nothing which happened thereafter which persuades me that they had ceased to be habitually resident in France. I conclude from the evidence and productions presented that the stay of the respondent and the two children in Scotland was to be of limited duration, consisting of the period of her maternity leave. I do not regard the sale of the family home in Narbonne as evidencing a joint intention to leave France for good. I am not persuaded that there was a joint decision to uproot themselves from France and relocate permanently to Scotland. The petitioner has his own expanding business in Narbonne, for which he relies on his livelihood (sic) and in order to maintain the respondent and children. He speaks little or no English. I reject as fanciful any suggestion that he intended to set up a business in Scotland. That would have involved abandoning his established business in France and attempting to set up a business in a country where he did not speak the language and had no obvious prospect of succeeding. He continued to live and work in France after the respondent and children came to live in Scotland, although he visited them regularly. The respondent and children returned to France on two occasions after their move to Scotland. Certain of the children's belongings were in storage in France. The lease of the property in which the respondent and children were living in Scotland was in her name alone. Nothing in the communications between the parties indicates a joint intention to uproot themselves from France and relocate permanently to Scotland."
The Lord Ordinary therefore granted the father's application.
That decision was reversed by an Extra Division of the Inner House of the Court of Session: [2014] CSIH 95; 2014 SLT 1080; [2014] Fam LR 131. The court considered that the Lord Ordinary had erred in law, in the passage which I have just quoted, in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children's habitual residence from France to Scotland. This error had deflected him from a proper consideration of the factors relied upon by the mother. Considering the matter afresh, in the light of the guidance provided by this court, the Extra Division concluded that the children were habitually resident in Scotland at the material time:
"If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland. The real issue is whether there was a need for a longer period in Scotland before it could be held that there had been a change in their habitual residence. For our part, in the whole circumstances we would view four months as sufficient." (para 14)
Article 1 of the Hague Convention provides that its objects include "to secure the prompt return of children wrongfully removed to or retained in any contracting state". In terms of article 3, the removal or the retention of a child is to be considered wrongful where, in the first place, it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention. Article 12 provides that, where a child has been wrongfully removed or retained in terms of article 3, and proceedings are commenced within one year before the judicial or administrative authority of the contracting state where the child is, the authority shall order the return of the child forthwith. Under article 13, the return of the child need not be ordered if it is established, inter alia, that the applicant for the order consented to the removal or retention.
In relations between the member states of the EU other than Denmark, the Hague Convention is supplemented by the ...
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