S. V. S. For An Order Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lord Kingarth |
| Date | 27 October 2004 |
| Docket Number | P493/04 |
| Court | Court of Session |
| Published date | 28 October 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P493/04
| OPINION OF LORD KINGARTH in the petition of S. Petitioner; against S. Respondent: for Orders under the Child Abduction and Custody Act 1985 ________________ |
Petitioner: Kelly; Drummond Miller; W.S.
Respondent: Hodge; Balfour & Manson,
28 October 2004
[1]The petitioner resides at an address in Malta. He married the respondent on 26 August 1993. The respondent is the mother of the child S., born on 16 November 1993 and of the child R., born on 13 June 1998. The petitioner is the natural father of S. P. is the natural father of R. Said children are currently residing with their mother, the respondent, at an address in Peterhead.
[2]The petitioner and the respondent lived together in Malta until they separated in terms of a Deed of Separation dated 19 May 1998. The Deed provided that care and custody of S. was assigned to the respondent but the petitioner was to have rights of access to his son every Monday, Wednesday and Friday from 5 p.m. to 7 p.m. After his birth R. was registered as the legitimate son of the petitioner and was thereby regarded in Malta as the legal son of the petitioner.
[3]Following the separation of the petitioner and the respondent, the respondent resided in Malta with P. together with the two children. On or about 12 March 2002, in circumstances which were to some degree in dispute, the respondent removed the two children from Malta and brought them to Scotland. Initially she resided with her mother at an address in Peterhead before moving, along with the children, to her present address in about June 2002.
[4]On or about 15 March 2002 the petitioner and P., as joint petitioners, raised proceedings in Malta seeking to obtain the return of the children to Malta. In these proceedings they both represented that they were unaware of the whereabouts of the respondent or the children. On or about 11 April 2002 the Court appointed curators to represent the absent respondent. In due course, on 14 October 2003, the First Hall of the Civil Court in Malta made an order entrusting the care and custody of the two children in favour of the petitioner, with rights of access to the child R. in favour of P. and ordered the respondent to return the children to Malta.
[5]Part II of the Child Abduction and Custody Act 1985 (the 1985 Act) makes provision for the recognition, registration and enforcement of custody decisions. Section 12(2) of the Act provides that, subject to the provisions of Part II of the Act, certain provisions of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children, signed in Luxembourg on 20 May 1980 ("the Convention") shall have the force of law in the United Kingdom. These provisions are set out in Schedule 2 to the Act. It is accepted that the decision of the Maltese Court of 14 October 2003 was a decision relating to custody within the meaning of the Convention by an authority in a Contracting State, and thus a decision capable of registration in the United Kingdom under section 16 of the Act. In this petition the petitioner makes application for registration of the decision under that section and, thereafter, for an order for its enforcement under section 18. In particular, he seeks an order ordaining the respondent to deliver both children to the petitioner in Malta within (as explained by his counsel) such time as may decided by the Court at a future By Order hearing to be fixed. Counsel on his behalf accepted that he did, in the alternative, not seek any order for enforcement in respect of only one of the children.
[6]Section 16(4) of the 1985 Act provides inter alia that the
"Court of Session shall refuse to register a decision if - (a) the court is of the opinion that on any of the grounds specified in Article 9 or 10 of the Convention, the decision should not be recognised in any part of the United Kingdom ..."
Article 9 of the Convention, as set out in Schedule 2 of the 1985 Act, provides,
"(1) (Recognition and enforcement may be refused) if:
(a) in the case of a decision given in the absence of the defendant or his legal representative, the defendant was not duly served with the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange his defence; but such a failure to effect service cannot constitute a ground for refusing recognition or enforcement where service was not effected because the defendant had concealed his whereabouts from the person who instituted the proceedings in the State of origin; ..."
Article 10 of the Convention, as set out in the same Schedule, provides,
"(1) (Recognition and enforcement may also be refused) on any of the following grounds:
(a) if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed;
(b) if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child; ..."
Article 15 of the Convention provides, in effect, that before reaching a decision under paragraph (1)(b) of Article 10 the court shall ascertain the child's views unless this is impracticable having regard, in particular, to his age and understanding.
[7]The current petition was raised on or about 31 March 2004. Answers for the respondent were received late on 21 April 2004. A hearing was assigned for 18 and 19 August 2004, and in the meantime the Court remitted to Ross McFarlane, Advocate, to enquire into and to report to the Court on the views of the child S. In the event, the report only became available on or about 17 August. On 18 August, on the motion of the petitioner (and despite opposition by the respondent) the first hearing was continued until 30 September (and the following day) to enable counsel for the petitioner inter alia to obtain his client's instructions in respect of the report. At the hearing on 30 September and 1 October there was before me an affidavit of the petitioner dated 18 May 2004. In addition, the certified translation of the decision of the Maltese Court contained a verbatim record of affidavits (apparently sworn at some stage between 28 June and 10 July 2002) of the petitioner, of P. and of the respondent's father. On behalf of the respondent there were lodged (shortly before the date for the hearing in August) two affidavits of the respondent, an affidavit from her mother and one from a friend R., - together with numerous productions.
[8]I record for completeness that at the outset of the hearing, counsel for the petitioner moved me further to continue the first hearing to a future date. It appeared that certain further information in the form of affidavits had been requested by the petitioner's Scottish agents and that his Maltese agent had led them to believe that some such information might soon be forthcoming. Counsel, however, fairly accepted that he could not say who had sworn any affidavits or what their contents were likely to be. The motion was strongly opposed on behalf of the respondent. In circumstances where I had made it plain in August that the court would be very unlikely to agree to any further continuations, I was not persuaded that the prospect of receipt at some unspecified time of some uncertain information was sufficient reason for any further delay - and I refused the motion.
[9]On behalf of the respondent it was argued that, on the facts of the case, the grounds specified in Article 9, 10(1)(a) and 10(1)(b) applied; that the Court should, in these circumstances, take the view that the Maltese decision should not be recognised and should therefore refuse registration and enforcement. I propose to deal with the issues raised in respect of each of the relevant Articles in turn, and thereafter to deal with the Court's residual discretion.
Article 9
[10]Notwithstanding that curators were appointed to represent the interests of the respondent in Malta, it was agreed before me that the decision of the Maltese Court was given in the absence of the respondent or her legal representatives. It was also agreed that the respondent was not duly served with the document which instituted the proceeding or an equivalent document in sufficient time to enable her to arrange her defence. Instead there was no dispute but that the decision was made against her in her absence, the court having proceeded on the basis of affidavits both from the present petitioner and from P. to the effect that they did know where the...
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