W v W
| Jurisdiction | Scotland |
| Judgment Date | 12 June 2003 |
| Date | 12 June 2003 |
| Docket Number | No 4 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Drummond Young
Children and young persons - Child abduction - Wrongful removal - Child Abduction and Custody Act 1985 (cap 60), sched 1, art 13
The Child Abduction and Custody Act 1985 provides for the return of children to a country where they are habitually resident. Article 13 provides that where removal of a child is wrongful, the court is bound to order its return, unless it is established that the petitioner's custody rights were not being exercised at the time of the removal, or that return would expose the child to physical or psychological harm or otherwise place it in an intolerable situation. The court may also refuse to order the return if the child objects to being returned and has attained an age or degree of maturity at which it is appropriate to take account of its views.
The petitioner and respondent married in 1997. There were four children of the marriage, H born in 1993 to the respondent in a previous relationship, and accepted into the marriage, A and D born in 1996 and F born in 1999. The family emigrated to Australia in 1998 and lived there together until November 2001, when they separated. In January 2002 the respondent returned to Scotland with the children without the petitioner's consent. The petitioner sought return of the children under the Act. The respondent opposed the petition on the ground that she was unable to obtain a suitable visa to enable her to accompany the children if they were returned, and that they would be placed in an intolerable situation if returned without her. She had not made any application for a visa. H, aged nine-and-a-half, entered the proceedings separately and opposed the petition on the ground that she objected to being returned. It was admitted that the removal of the children was unlawful, and that the petitioner had rights of access to all four children which were being exercised at the time of the removal. On 25 February 2003, after proof, the Lord Ordinary refused the prayer of the petition, holding that H was of sufficient age and maturity for her views to be taken into account, and her wishes should prevail; and that accordingly the remaining three children should not be returned, because to separate the family unit would place all the children in an intolerable situation. The petitioner reclaimed, arguing that the Lord Ordinary had failed to assess H's maturity and the validity of her objection by reference to her reasons, and failed in the exercise of his discretion as to whether he should give effect to her wishes; and that he ought to have decided whether the defence of placing the children in an intolerable situation was established before considering the effect of any decision about H on the family as a whole.
Held that: (1) where a separate defence of objection to returning arises in respect of one child only, a decision to give effect to the wishes of child ought not necessarily to seal the fate of all the children (para 17); (2) the Lord Ordinary ought to have reached a view on the defence of placing the children in an intolerable situation before considering the separate defence of the child's objection to returning (para 18); (3) it was doubtful whether there was sufficient material before the Lord Ordinary to entitle him to conclude that the child had a proper understanding of the range of choice available to her, nor that most of her objections were independent of her mother's influence (paras 35-37); and (4) he ought to have tested the strength and validity of the child's objection by reference to her reasons before exercising his discretion, and that her reasons did not have the strength and validity to lead to the conclusion that it was appropriate to take account of her views (paras38-49); and reclaiming motionallowed and prayer of petition granted, execution of the order being suspended pending the issue of a visa.
Re T (Abduction: Child's objection to return)FLR [2000] 2 FLR 192applied.
PW, the father of children unlawfully removed from Australia by AW, their mother, presented a petition to the Court of Session seeking an order for their return on the basis of the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction. The children's mother opposed the order on the ground that she was unable to obtain a suitable visa, and therefore would not be able to accompany the children. The eldest child, H, aged nine-and-a-half, separately opposed it on the ground that she objected to being returned. On 25 February 2003, the Lord Ordinary refused the prayer of the petition, holding that H's objection should be given effect, and that consequently the remaining children should not be returned. The petitioner reclaimed.
Cases referred to:
Re R (Child Abduction: Acquiescence)FLR [1995] 1 FLR 716
Re S (A Minor) (Abduction)UNK [1993] 2 All ER 683
Re T (Abduction: Child's objection to return)FLR [2000] 2 FLR 192
Urness v MintoSC 1994 SC 249
The petition called before the First Division, comprising the Lord President (Cullen), Lady Cosgrove and Lord Johnston for a hearing on the summar roll, on 23, 29 and 30 May 2003.
At advising, on 12 June 2003, the opinion of the Court was delivered by Lady Cosgrove -
OPINION OF THE COURT -[1] The petitioner and respondent were married at Aberdeen on 8 November 1997. There are four children of the marriage, H, born on 4 July 1993 (a child of the respondent by a previous relationship, and accepted into family by the petitioner), A and D, both born on 14 March 1996, and F, born 3 December 1999.
[2] The petitioner and the respondent emigrated to Australia in April 1998 and lived there together with their children until November 2001, when they separated. On 14 January 2002, following an application by the petitioner to the Family Court of Western Australia, the court of Petty Sessions, Perth, Western Australia pronounced Minute of Consent Orders in terms of which the petitioner was to have contact to the children on two days each week and by telephone every evening. On or about 17 January 2002 the respondent returned to Scotland with the children without having obtained the consent of the petitioner.
[3] In this petition, the petitioner seeks an order for the return of the children to the jurisdiction of the Family Court of Western Australia. That order is sought on the basis of the Child Abduction and Custody Act 1985 and the articles of the Hague Convention on the Civil Aspects of International Child Abduction set out in sched 1 to the Act. The respondent lodged answers to the petition. A proof took place before the Lord Ordinary on 20 and 21 February 2003. On 25 February 2003 he issued an interlocutor refusing the prayer of the petition. Against that interlocutor of the Lord Ordinary the respondent has now reclaimed.
[4] It was admitted before the Lord Ordinary and this court that the removal by the mother of the children was unlawful in terms of Art 3 of the Convention, and that the petitioner had rights of custody in respect of all four children in terms of Art 5. That being so, it was not disputed that Art 12 applied, and that, unless Art 13 could be invoked successfully, the court required to order the return of the children forthwith to Western Australia.
[5] Article 13 provides:
'Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
(a)
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
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.'
[6] Before the Lord Ordinary the submission on behalf of the respondent was that she was willing to accompany the children back to Australia but would be unable to do so: despite considerable efforts made by her, she had been unable to obtain a suitable visa. The children had always been in her care and, in the event of their being returned to Australia without her, there was a grave risk that they would be placed in an intolerable position. It was further contended that the respondent had no accommodation or means of support available to her and the children in Australia. It was separately contended on behalf of the child, H, who is now over 9 years old, that she did not wish to return to Australia and that she had attained a degree of maturity at which it was appropriate to take account of her views.
[7] In paras 3 and 4 of his opinion the Lord Ordinary expressed the following views on the respondent's defence under art 13(b):
'In the circumstances of the present case, where the respondent has cared for the children for nearly all of their lives, I would regard separating the children from their mother as placing them in an intolerable situation. The same would be true if the children were separated from one another; the family unit is clearly of paramount importance, and breaking it up for reasons based on the Convention would be wholly unacceptable. For these reasons, if I had been inclined to order the return of the children to Western Australia, I would not have pronounced an interlocutor ordering their return unless I was first satisfied of two matters. The first such matter is that the respondent should obtain an Australian visa that will entitle her to remain in Australia for the entire duration of the proceedings relating to the custody of the children, however long such proceedings might take. In my opinion it is for the Australian authorities to make a satisfactory visa available; Australia has made a request to the Scottish Executive for the return...
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