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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PQ, Re Application For An Order Under The Child Abduction & Custody Act 1985 [2000] ScotCS 114 (27 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/114.html Cite as: [2000] ScotCS 114

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[1] At the outset, counsel for the petitioner moved for a direction in terms of section 46 of the Children and Young Persons (Scotland) Act 1937 as amended and as extended by the Broadcasting Act 1990. He did so because this case involves allegations of sexual abuse by a father of his daughter, and allegations of physical abuse by the father of both daughter and son. Counsel for the respondent did not oppose the motion.

Section 46 provides:

1. no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification of a person under the age of seventeen years concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
2. no picture shall be published in any newspaper as being or including a picture of a person under the age of seventeen years so concerned in the proceedings as aforesaid;

The Broadcasting Act 1990 Schedule 20 provides that section 46,

[2] On the material before me, I was satisfied that counsel's motion was well-founded. Accordingly in terms of section 46 of the Children and Young

Persons (Scotland) Act 1937, as amended and extended by Schedule 20 of the Broadcasting Act 1990, I direct that no newspaper report or programme service of the proceedings shall reveal the names, addresses or schools of, or include any particulars or details calculated to lead to the identification of, the children G (born on 2 April 1994) and B (born on 7 October 1996); and I direct that no picture shall be published or broadcast by programme service of either of said children.

[3] This is a petition by a Frenchman P.Q. (aged 37; date of birth 24 January 1963). He seeks the immediate return to France of his two children, a girl G (aged 6; date of birth 2 April 1994) and a boy B (aged 3; date of birth 7 October 1996) in terms of the Hague Convention on the Civil Aspects of International Child Abduction, as incorporated into United Kingdom law by the Child Abduction and Custody Act 1985.

[4] G and B were removed from France by their mother R.S. (aged 32; date of birth 27 April 1967) on 4 December 1999. They were brought to a town in Scotland where they presently reside. R.S. opposes their return to France, on the ground that there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation in terms of Article 13(b) of the Hague Convention.

[5] At a first hearing, counsel for P.Q. invited me to determine the issues without hearing evidence. Counsel for the respondent reserved her position in relation to hearing evidence. Both counsel invited me to have regard to affidavits, reports and other productions. I took the view that, when assessing grave risk in terms of Article 13(b) of the Convention, I would derive some assistance from such affidavits, reports and other productions: cf. dicta of Lord Coulsfield in MacMillan v MacMillan, 1989 S.L.T. 350. I accordingly took them into account.

[6] The first hearing was attended throughout by P.Q. and R.S. Also in court were members of R.S.'s Scottish family (her father, two sisters, and brother-in-law). Latterly P.Q.'s sister attended. The family members who sat in court during the first hearing understood that in so doing they were disqualifying themselves from giving evidence at any future stage in the Scottish petition proceedings.

[7] The parties, a Frenchman P.Q. and a Scotswoman R.S., were married in Scotland on 5 June 1993. On 2 April 1994 their first child a girl G was born. A boy B was born on 7 October 1996. In 1998 the parties were living and working in France. P.Q. was a bank executive; R.S. worked with a financial company. The matrimonial home was in St. L. in France.

[8] The parties separated on 23 July 1998 when R.S. left the matrimonial home. She alleges misconduct on the part of P.Q. and in particular an incident of serious violence on 29 June 1998. The allegations have not yet been the subject of a proof, and are denied. R.S. had on 27 June 1998 entered into the lease of a two-room apartment in St. L. When she left the matrimonial home on 23 July 1998, she went to live in the two-room apartment, taking the children with her. She raised divorce proceedings in the Family court, Pontoise. She obtained an emergency order which authorised her to keep the children. P.Q. was permitted regular contact with both children, including a two-week holiday beginning on 15 August 1998, at the end of which the children returned to reside with R.S.

[9] On 11 September 1998, the case came before the Family Court, Pontoise, (Judge Martine Lebrun). Both P.Q. and R.S. sought interim orders: both sought residence in relation to the children. The children had been living with their mother R.S. since the date of the separation. The Family Court granted a non-conciliation order, authorising her to live apart from P.Q. - a necessary prerequisite to divorce in France. However, interim residence was awarded to P.Q. thus returning the children to their father and to the matrimonial home. The decision of the court dated 24 September 1998 (translated) stated inter alia:

[10] Counsel for P.Q. explained that the Family Court in Pontoise had taken the view that R.S. might not succeed in establishing the misconduct necessary for a divorce: the Family Court was not necessarily expecting the parties to become reconciled, but ad interim was not convinced that R.S. would make out her grounds.

[11] Following upon the court order of 24 September 1998, the children went to live in the matrimonial home with their father. According to R.S., difficulties and concerns immediately arose: the children were taken away from St.L. to P.Q.'s mother's house in Gard (some 800 kms or 500 miles from the matrimonial home and from R.S.'s apartment). R.S. was not kept informed of their whereabouts or well-being. The children were kept in Gard until 4 October 1998. When they were brought back to St. L., R.S. was able to obtain contact only on 7, 10-11, 14, and 21 October 1998. Moreover when she saw the children, she became concerned about their happiness and well-being: she noted bruises on both children, eczema on B, and thought that the children's behaviour suggested that they were not being well cared for.

[12] A medical report by Dr Delattre dated 8 October 1998 (translated) notes:

A medical certificate by Dr Delattre dated 8 October 1998 (translated) relating to G noted numerous bruises on the thighs, calves, front side of shin bones and knees, the bruises being four or five days old. A medical certificate by Dr Meunier dated 10 October 1988 (translated) notes in relation to B:

[13] These are ex parte allegations by R.S. which have not yet been the subject of inquiry and proof. They resulted in R.S. making a summary application to the Family Court in Pontoise on 16 October 1998, seeking residence, which failing, contact from Tuesday evening to Thursday morning. At the hearing on 29 October 1998, her lawyer drew the court's attention to R.S.'s concerns. P.Q. opposed the application. He requested various orders, a final request being noted as "in the alternative, he asked for a psychological examination of the children and the parents".

[14] On 12 November 1998 the Family Court (Judge Martine Lebrun) refused to vary the interim residence order, awarded R.S. interim contact every week from Tuesday at 1830 until Thursday at 0800 hours, and ordered a medico-psychological report to be prepared in relation to the children. The decision of the court (translated) stated inter alia:

[15] Despite the time-limits set by the court's decision of 12 November 1998, a psychological report by Mr Dumez was not considered by the court until 9 September 1999, almost a year after the original non-conciliation order of 24 September 1998. The circumstances giving rise to that delay were as follows: Mr Dumez would not begin his inquiries until he had received a fee in advance. Although R.S. paid her half share of the fee (fixed at FRF 2,000 by the court, to be paid by 12 December 1998), P.Q. did not. R.S. discovered what had occurred, and on 1 February 1999 she paid P.Q.'s half of the fee. R.S. was subsequently refunded that one half of the fee by the court in September 1999. Counsel for P.Q. explained at the first hearing that P.Q. had sent his 2,000 francs to his lawyer in January 1999. His lawyer had paid it into court.

[16] At all events Mr Dumez did not begin carrying out inquiries until April 1999. His report became available on 20 July 1999, just before the court vacation. In his report (translated), he concluded inter alia as follows:

[17] As a result of the court vacation, the matter did not come before the Family Court until 9 September 1999. Despite the terms of Mr Dumez' report, the court (Judge Claude Butin) confirmed the decision of 12 November 1998 insofar as residence remained with the father P.Q., with contact (as defined in the decision of 12 November 1998) being awarded to the mother R.S. The judge observed that,

An appeal against the Family Court's decision of 9 September 1999 was marked on 5 October 1999. R.S. applied for an emergency appeal procedure, which was refused. The first appeal date available was 27 March 2000, in Versailles.

[18] Following upon the Family Court's decision of 9 September 1999, life for the children continued as before, i.e. residence at the matrimonial home with their father P.Q., who was assisted by childminders, and contact with their mother R.S. On 30 October 1999 the children went on holiday with their father to P.Q.'s mother's home in Gard. They returned from holiday on 7 November 1999. That same day they were delivered to their mother R.S. for a period of contact. They were to be returned to P.Q. on 12 November 1999.

[19] Counsel for R.S. stated at the first hearing that the child G, on her return from holiday on 7 November 1999, made disclosures to R.S. indicating that P.Q. had physically and sexually abused her. Reference was made to an Affidavit dated 7 March 2000 by R.S., a supplementary Affidavit dated 13 March 2000, and to various productions.

[20] Counsel for P.Q. in his submissions emphasised that it is no part of this court's function to attempt to ascertain the truth or otherwise of any allegations of physical or sexual abuse in relation to either child. Counsel for R.S. did not dispute this. I accept that it is not for this court to attempt to ascertain whether any physical or sexual abuse occurred. Accordingly whenever reference is made to alleged physical or sexual abuse, it is not intended to represent a finding that any physical or sexual abuse actually took place.

[21] R.S. was shocked by what G had said. Initially she took G to a hospital. After having waited for some time, she was advised that, as there were allegations of sexual abuse, the matter had to be reported to the police before any medical examination could take place. R.S. took G to Argenteuil Police Station and reported the matter. At 01.25 a.m. on 8 November 1999, G was examined by Dr. Vie Le Sage, at the Rene Dubois Hospital Centre, Pontoise (medico-judiciary unit). What follows are excerpts from the doctor's report (translated):

[22] The doctor assisting Dr Vie le Sage was sufficiently concerned by the findings to telephone the police, even although he was doing so during the early hours of the morning. The police made a note of his telephone call as follows (translated);

[23] At 10.25 a.m. on 8 November 1999 G was interviewed by a police commander Marc Maserati and a police officer Natalie Mas. The record of the interview (translated) included the following:

[24] During a further interview with Nathalie Mas at 11 a.m., the following further statements (translated) were recorded:

[25] A drawing which G made of her father, her brother, and herself, is attached to the record of the interview, and the notes of interview further state:

[26] On 9 November 1999, R.S. met with the Deputy Public Prosecutor, Mr Modat, at Pontoise. Having spoken with R.S., Mr Modat verbally authorised her to keep the children meantime. On 12 November 1999, Mr Modat issued an 8-day order to R.S., entitling her to keep the children, despite the orders of the Family Court of Pontoise granting residence to P.Q. According to R.S., she telephoned P.Q. to advise him that she was keeping the children and to explain about the 8-day order. P.Q. then arrived with police officers, to reclaim the children and to take them back with him to the matrimonial home. The police officers came to R.S.'s door. They knew nothing of the 8-day order. R.S. showed them the order. After considerable questioning, the officers finally accepted the terms of the order and did not insist that she hand over the children.

[27] The 8-day order, having been granted on 12 November 1999, was to come to an end on about 20 November 1999. R.S. was obviously concerned about protective measures for G, pending the outcome of any investigations. On 15 November 1999 she wrote to the prosecutor, advising of some further disclosures from G concerning P.Q. allegedly hitting her on the bottom with a clenched fist; allegedly licking her private parts while holding her by the neck; and allegedly talking about making love. She asked what would happen in the future. In particular she wrote:

[28] On 18 November 1999 P.Q. attended the police station. He was detained for 24 hours. At 10.35 a.m. he was interviewed. In brief, he denied any abuse, attributed any bruises on G's legs to her bike, denied that G ever slept in his bed stating "each one of us has our own room", and agreed that he had "had to take her temperature a few times when she was unwell". At 13.50 p.m. he accompanied police officers to the matrimonial home where they searched the premises, and noted that G and B each had a bedroom. The police concluded "Since our search has not produced any element likely to help us move forward with our investigation, we return to our offices after having locked the house." At 3.30 p.m. P.Q. was allowed to leave the police station.

[29] On 18 November 1999, the police also interviewed Paola Casanobe who had acted as the children's nanny from August 1997 to October 1998.

[30] As R.S. explained in her affidavit, the prosecutor did not extend the 8-day order, nor did he make a fresh order to provide interim protection for the children. On 19 November 1999, R.S. telephoned the prosecutor's department and was told that the police investigation was not yet concluded. She was told to take the children back to P.Q. when it was his turn to have them again (22 November 1999). R.S. took legal advice. She decided not to return the children to P.Q. meantime. On 22 November 1999 she took both children to see a paediatrician, Dr. Scalbert. He volunteered to send his report to the prosecutor. His report (translated) includes the following:

[31] On 24 November 1999, the prosecutor advised R.S. that there was to be no criminal prosecution of P.Q. as there was insufficient evidence to secure a conviction. On the same date, the prosecutor referred the case to the Juvenile Court (or "Juvenile Justice", "Juvenile Judge", "Children's Court", "Children's Judge"), at Pontoise, as some form of "educational assistance" might be required. Counsel for both petitioner and respondent explained that such a referral was equivalent to a report being made to the Children's Panel in Scotland, and that a variety of orders (some equivalent to the Scottish Place of Safety Order) might follow. "Educational assistance" could therefore take the form of some sort of interim care order, or interim supervision order, or an order for supervised contact, having as its goal the protection of the children ad interim, pending inquiries. The Juvenile Court was provided with the whole police file, including transcripts of the police interviews quoted above and Dr. Vie le Sage's report of the medical examination. It is not known whether the Juvenile Court also received R.S.'s letter of 15 November 1999, or Dr. Scalbert's report dated 22 November 1999.

[32] At about this time, R.S. made inquiries directed to raising a private prosecution against P.Q. ("partie civile" procedure).

[33] On 25 November 1999, R.S. received a letter from the Juvenile Court, advising inter alia (as translated):

[34] On 2 December 1999, R.S. took a short-term let of a furnished flat in Paris. She moved in with the children. The final days of the children's residence in France are described by R.S. in her Affidavit dated 7 March 2000 as follows:

[35] The children are currently living with their mother R.S. at her parents' home in L, Scotland.

[36] On 9 December 1999, P.Q. went to the children's school and found that the children had not attended school since Monday 8 November 1999. He travelled to Scotland, and on 11 December 1999 had a confrontation with R.S.'s father. He knew by then that the children were in R.S.'s parents' home. He went to police headquarters in Edinburgh, and stated that he wished to get his children back. He was advised to contact the French consulate in Edinburgh.

[37] On his return to France, P.Q., acting jointly with the public prosecutor, proceeded to file a criminal complaint against R.S. in respect of her wrongful removal of the children. On 17 December 1999 he paid a deposit of 5,000 francs in connection with the criminal complaint.

[38] On 6 January 2000, the Juvenile Court in Pontoise held a hearing relating to G and B. It was attended by P.Q. and his lawyer, Maitre Camus. There was no appearance for R.S. The Juvenile Court had before it the referral from the public prosecutor together with the police file, including the transcripts of the police interviews and Dr. Vie le Sage's medical report. The Juvenile Judge was also made aware that the children had been taken to Scotland by their mother, and that P.Q., who held the order of residence in his favour from the Pontoise Family Court dated 9 September 1999, was attempting to bring about the return of the children to France (and ultimately to his care) with the assistance of the Hague Convention. The hearing was fairly short, about ten minutes in length. About two weeks later, the Juvenile Judge issued a decision in writing, quoted below.

[39] On 19 January 2000 P.Q. authorised the Central Authority for the Hague Convention to act on his behalf in respect of his request that the children be returned to France.

[40] On 21 January 2000 the Juvenile Court dismissed the case concerning G and B, thus bringing to an end for the time being any possibility of the French equivalent of a Place of Safety Order being granted. The decision (translated) stated inter alia:

Notification of this decision was sent to inter alios R.S.'s French lawyer, Maitre Mercier.

[41] On 24 January 2000, the French Ministry of Justice requested the assistance of the Scottish Courts Administration, Edinburgh, in achieving the return of the two children to France in terms of the Hague Convention. A petition on behalf of P.Q. was presented to the Court of Session. Answers were lodged, as were affidavits and productions. On 10, 13 and 17 March 2000, the first hearing took place. A Children's Hearing in Scotland, arranged for 16 March 2000 as a result of grounds of referral submitted by the Reporter on the basis of information provided by R.S., was cancelled because the matter was before the Court of Session.

[42] The current state of proceedings in France is as follows: on 28 February 2000, R.S. filed a private prosecution against P.Q. in Nimes, France. The appeal in the French Family Court was to have taken place in Versailles on 27 March 2000. The hearing in Pontoise Family Court of the parties' divorce is still to take place.

[43] G made further disclosures which, unlike those quoted above, may not have come to the attention of the Juvenile Court. In particular, R.S. in her letter dated 15 November 1999 advised the prosecutor that G had described being naked, lying on her back, opening her legs, and being held by P.Q. by the throat while he licked her private parts. G had also described P.Q. hitting her on her bottom with his clenched fist. G had spoken about "making love". It was not clear at the first hearing whether the letter dated 15 November 1999 had been passed on to the Juvenile Court.

[44] Further in her Affidavit dated 7 March 2000, R.S. stated:

[45] The Juvenile Court in Pontoise did not have the additional information contained in the Affidavit.

[46] Both parties lodged and referred to affidavits from French lawyers, Maitre Chauveau (instructed by P.Q.) and Maitre Mercier (instructed by R.S.). The following are excerpts:

[47] Maitre Chauveau, dated 8 March 2000 (as translated):

[48] Maitre Mercier, dated 8 March 2000 (as translated):

Maitre Mercier expresses a personal view that the operation of the French legal system, including the police, the state prosecutor, the Children's Judge, the Family Court, and the Appeal Court, may not be able to offer G and B protection ad interim pending a full inquiry into the facts. The concluding paragraphs state:

[49] Maitre Chauveau dated 9  March 2000 (as translated, commenting on Maitre Mercier's affidavit dated 8 March 2000):

[50] In addition to the information contained in the affidavits from French lawyers, counsel were agreed as follows:

Standard of proof in French civil and French criminal proceedings: parties were agreed that, although neither affidavit dealt specifically with this matter, the standard of proof was higher in French criminal proceedings than in French civil proceedings, similar to the difference in Scottish law between proof beyond reasonable doubt in criminal proceedings, and proof on a balance of probabilities in civil proceedings.

Period on remand in French criminal proceedings: parties were agreed that in France, there is no "110-day rule", and accordingly where a person as yet untried for an offence is refused bail and imprisoned on remand, that person can remain in prison for long periods, possibly extending to years. Bearing that in mind, it would be a fairly extreme measure to imprison P.Q. on remand on the basis of G's disclosures, pending a full inquiry if necessary by criminal trial.

Juvenile Court and Family Court: parties were agreed that the orders of the Juvenile Court took precedence over any order made in the course of the divorce proceedings in the Family Court.

[51] A joint report dated 29 February 2000 prepared by Dr. Joanne Barton, Child Psychiatrist, and Ms. Christine Puckering, Clinical Psychologist, both of the Royal Hospital for Sick Children, Yorkhill, Glasgow, was referred to by counsel for R.S. The report stated inter alia:

1. EVIDENCE FOR THE LIKELIHOOD OF ABUSE

1. THE EFFECT OF SEPARATING G AND B

[52] Counsel for R.S. referred to a medical report dated 1 March 2000 by Dr Jean Herbison, consultant paediatrician. That report stated inter alia.

[53] The United Kingdom and France are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention was incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985, section 1(2) and Schedule 1.

[54] Counsel for R.S. accepted that G and B had been wrongfully removed from France in terms of Article 3 of the Convention. In such circumstances, Article 12 applies. Article 12 provides:

[55] Standing the decision of the French Family Court in Pontoise dated 9 September 1999, counsel for R.S. accepted that G and B should prima facie be returned to France forthwith in terms of Article 12. However counsel invoked Article 13(b), which provides:

[56] It was submitted that the issue for the Court of Session was not an investigation into the veracity or otherwise of the allegations, but a decision firstly, whether a defence of grave risk in terms of Article 13(b) had been made out (the onus being upon R.S.); and secondly, in the event that the court was satisfied that there was grave risk, whether or not the court should exercise its discretion by refusing to order the return of the children to France.

[57] Counsel for R.S. referred to Friedrich v. Friedrich, 78 F.3d 1060 (1996), a decision of the United States Court of Appeals which has been cited with approval in Scottish decisions such as Starr v. Starr, 1999 S.L.T. 335 and D.I. petitioner, 21 May 1999 (Lord Abernethy, unreported). Friedrich has considerable persuasive force bearing in mind the dicta of Lord Browne-Wilkinson in In re H and others (Minors) (Abduction: Acquiescence) [1998] A.C. 72 at p.87 ("An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states.") At p.1068 of Friedrich, the court notes:

[58] Counsel also referred to C v C (Abduction: Rights of Custody) [1989] 1 W.L.R. 654; [1989] 2 All E.R. 465, in which Lord Donaldson observed:

[59] Counsel referred to further authority, including Re A (a minor) abduction [1988] 1 F.L.R. 365 at p.372; MacMillan v MacMillan, 1989 S.L.T. 350; and Urness v Minto, 1994 S.C. 249.

[60] Counsel for R.S. accepted that the test was a stringent one, but contended that the second branch of the Friedrich analysis had been made out in the present case. Under reference to the Answers, the affidavits, and the productions including the transcripts of police interviews, the medical report by Dr. Vie le Sage, the expert French legal opinion of Maitre Mercier, the opinion of Child Psychiatrist Dr Barton and Child Psychologist Ms. Puckering, and the opinion of Dr Herbison, consultant paediatrician, counsel contended that a prima facie case of serious physical and sexual abuse of G had been made out. The matter had been placed in the hands of the courts in France, but despite the involvement of the Family Court (Pontoise), the police, the public prosecutor, and the Juvenile Court (Pontoise), once the 8-day order came to an end on 20 November 1999, no order had been put in place to provide some sort of protection for G pending an investigation of the allegations. G's case appeared to have "fallen through the net". As from 21 November 1999, the person against whom the allegations of abuse were being made (whether truthfully or falsely) could, in terms of the Pontoise Family Court decision of 9 September 1999, reclaim G and take her into his care. In such circumstances the courts of habitual residence had demonstrated either an unwillingness or an incapacity to give the child adequate protection. To return G to France, even with some sort of undertaking (limited in time) given by P.Q. would result in a grave risk that her return would expose her to physical or psychological harm, and would place her in an intolerable situation. In relation to B, counsel submitted that there was some evidence that he had been physically abused, but in any event it was clear from the reports that professional opinion was that the two children should not be separated: cf. Urness v Minto, 1994 S.C. 249. A further difficulty if the children were returned to France, and R.S. accompanied them, was the possibility that R.S. might face imprisonment for having wrongfully removed the children.

[61] Counsel for P.Q. argued forcefully that both children should be returned to France forthwith. Further decisions relating to residence, contact, parental authority, and protection of the children would be made by the French courts. It was not for the Court of Session to attempt to ascertain the truth or otherwise of the allegations which had been made. The only issue which was properly before the court was whether R.S. had made out a defence in terms of Article 13(b) of the Convention, which she had not. Reference was made to a considerable number of authorities in which courts had emphasised that signatories of the Convention had to have faith in each other's legal systems, and to trust that children requiring protection would receive the appropriate protection from the legal system in the "abducted-from" country (to use the terminology from Friedrich). In particular reference was made to In re H (Abduction) [1998] AC 72 at p.87; N v N (Abduction: Article 13 defence) [1995] 1 F.L.R. 107, at p.112; Starr v Starr 1999 S.L.T. 335; D.I., May 21, 1999 (Lord Abernethy); Friedrich v Friedrich, cit. sup.; Re E [1999] 2 F.L.R. 642; Cooper v Casey [1995] F.L.C. 92-575; Re F [1992] 1 F.L.R. 548; Robertson v Robertson, 1998 S.L.T. 468; MacMillan v MacMillan, 1989 S.L.T. 350; and Re L [1999] 1 F.L.R. 433. To adopt any other position would be to undermine the purpose of the Convention. It was accepted that no precedent had been cited which was precisely in point with the present case, i.e. no precedent which involved allegations of sexual abuse of a child by his or her father, where the mother had, from the start, brought the allegations to the attention of the authorities and the courts in the abducted-from country. For example, in Starr v Starr, cit. sup., the abducting parent had not attempted to place her concerns about possible sexual abuse in the hands of the authorities or the courts in the abducted-from country. Nevertheless the cases cited vouched P.Q.'s right to the immediate return of the children to France, where the French courts would provide appropriate protection and dispute resolution. There was little risk that R.S. would be imprisoned. Even if there were a risk, the French courts would take the children's interests into account when dealing with her: cf. Re L (Abduction: Pending Criminal Proceedings) [1999] 1 F.L.R. 433. Counsel for P.Q. offered to give such undertakings as might be thought necessary, for example, not to seek to enforce the Pontoise Family Court decision of 9 September 1999 for a period of seven days following the children's return to France (or for a longer period, if necessary) to enable R.S. to apply for orders in the French courts.

[62] Counsel for P.Q. did not dispute that, on the basis of the allegations as they appeared on paper, there were questions requiring investigation. He did not suggest that the allegations could be ignored as being fictitious or fabricated. Nor did he dispute that, on the termination of the 8-day order, no protective order was in place. He accepted that the letter dated 25 November 1999 from Pontoise Juvenile Court intimating that a file had been opened did not amount to a protective order. His contention was that, following well-recognised authority, there was no reason to believe that the courts of the abducted-from country would not respond appropriately. The tempus inspiciendum for this court's assessment of the capacity and willingness of the French legal system was the time at which the matter came before the Scottish court: MacMillan v MacMillan, 1989 S.L.T. 350 at p.355. R.S. would be able to present to the French courts all the information which she now had, including her letter dated 15 November 1999, Dr. Scalbert's report, the report by Dr. Barton and Ms. Puckering, and the report by Dr. Herbison. The very presence of R.S. in the French court would make the hearing significantly different from the Juvenile Court hearing on 6 January 2000, when she had not attended. The decision of the Juvenile Court dated 21 January 2000 had not made the matter res judicata. R.S. would be able, during the seven days or longer period consented to by P.Q. in his undertaking, to apply for all emergency orders necessary to protect the children. In order to succeed in her Article 13(b) defence, R.S. would have to satisfy the Court of Session that, if she were to return the children to France, and if she were to place the appropriate information and arguments before a competent court, that court would not give the children protection in this case. R.S. had not demonstrated that this would occur. Finally, on any view, an Article 13(b) defence had not been made out in relation to P.Q.'s son B.

[63] Applying the principles outlined in the authorities cited by counsel, the following propositions might be formulated in relation to a court in a Hague Convention country faced with allegations of sexual abuse by one parent of a child abducted by the other parent.

[64] On such an analysis, the defence of grave risk would not be made out, and any petition for the return of the child to the country of the alleged abuser should be granted forthwith: cf. Friedrich v Friedrich cit. sup. and the other authorities cited by counsel.

[65] In the present case, propositions (1), (2) and (3) can be applied without difficulty. However when proposition (4) is examined, the history of the present case and the sequence of events from July 1998 to January 2000 have to be taken into account. The facts speak for themselves, and in the rather unusual circumstances of this case, I consider that there is indeed reason to assume that the courts in France might not, for whatever reason, be able or willing to provide adequate protection for G and B (cf. Friedrich cit. sup.) I have reached this view for the following reasons:

[66] Turning to proposition (5), bearing in mind the history of the case and the sequence of events from July 1998 to January 2000, I do not accept that the Court of Session in Scotland can return G to France assuming that the French courts will provide adequate protection for her, for the reason that the French courts apparently did not do so upon the termination of the 8-day order, despite having the information contained in the police interviews and the medical report by Dr. Vie le Sage. As Maitre Chauveau was careful to explain in para.39 of her Affidavit dated 8 March 2000: "If [R.S.] returns to France with her children, she would be able to [restore] the proceedings before the Juvenile Justice and could ask that the children be put in her care in the interim. The decision lies with the Judge ...". There is therefore no guarantee that on G's return a protection order of some sort will be put in place. On the contrary, if past events are taken as a guide, there is at least a possibility or a risk that a French court or equivalent authority might not put such an order in place.

[67] Turning finally to proposition (6): I am satisfied that in the exceptional circumstances of this case, R.S. has made out the defence of grave risk in terms of Article 13(b) in that there exists at least a possibility or a risk that the French courts will react to the information contained in the police interviews and the report by Dr. Vie le Sage in the way in which they did previously - even if that information is further elaborated and enhanced by the detail and comment contained in R.S.'s letter dated 15 November 1999, her Affidavit dated 7 March 2000, the report by Dr. Barton and Ms. Puckering dated 29 February 2000, the report by Dr. Herbison dated 1 March 2000, and any other additional material which is put before the court. Where such a possibility or risk exists, then there is a concomitant risk that the child who has disclosed alleged sexual abuse might be lawfully re-delivered into the unsupervised care of the alleged abuser, to be alone in his company. Such a risk is in my opinion "more than an ordinary risk or something greater than would normally be expected on taking a child away from one parent and passing [her] to another ... the risk [is] a weighty one" (Nourse L.J. in Re A (A Minor) (Abduction) [1988] 1 F.L.R. 372. The risk amounts in my view to "a grave risk that [G's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." In relation to B, bearing in mind the further disclosures by G narrated by R.S. in paragraph 62 of her Affidavit dated 7 March 2000, relating not merely to alleged kicks administered to B, but also to alleged behaviour involving "drinking B's piddle from his willy, while holding B around the throat and saying to B `Tu vas mourir" (you're going to die)", I have also concluded that it is difficult for this court to assume at this stage that there is no truth in these allegations; and that bearing in mind the approach adopted by the French legal system towards G during November and December 1999, there is a related risk that B, a child who may have been subjected to some sort of physical and/or sexual abuse by P.Q., would be lawfully re-delivered into the unsupervised care of the alleged abuser, to be alone in his company. Such a risk amounts in my opinion to "a grave risk that [B's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

[68] I should add that counsel for P.Q. submitted that any lacuna occurring after the termination of the 8-day order was entirely attributable to R.S. It was said that R.S. should have made an application to the Juvenile Court. I do not agree. R.S. had done everything within her power to bring serious allegations of child sexual abuse to the attention of the appropriate authorities. She had obeyed court orders and co-operated with the authorities. Yet from 20 November 1999 onwards, no protective measures were put in place. On the contrary, the Juvenile Court, having on 6 January 2000 considered the police file including the interviews, and the medical report of Dr. Vie le Sage, and in the knowledge that P.Q. was actively seeking the return of the children to France (and ultimately to his care) with the assistance of the Hague Convention, closed the file stating "In the absence of risk to the children's health, safety or morals or the compromise of its educational conditions, it is appropriate ... to close our educational assistance procedure."

[69] Both counsel agreed that, in the event that the court formed the view that a defence in terms of Article 13(b) had been made out, the court has a discretion whether or not to order that both or either of the children should be returned to France.

[70] In exercising that discretion, I had regard inter alia to the following factors:

[71] In all the circumstances, in the exercise of my discretion, I have concluded that neither G nor B should be returned to France in terms of Article 12 of the Hague Convention as incorporated into United Kingdom law by the Child Abduction and Custody Act 1985. Accordingly I shall refuse the prayer of the petition insofar as it seeks that the respondent be ordained to return G and B "to France and the jurisdiction of the French Courts all in terms of the Child Abduction and Custody Act 1985 within forty eight hours or such other period as to the court shall seem proper; and failing such delivery for warrant for messengers at arms to search for said children and take possession of them and deliver them to the petitioner; and for warrant to open lockfast premises". I shall reserve the question of expenses to enable parties to address me on that matter.