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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M.M. v. A.M.R. or M. [2002] ScotCS 330 (14 November 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/330.html Cite as: [2002] ScotCS 330

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M.M. v. A.M.R. or M. [2002] ScotCS 330 (14 November 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord MacLean Lord Weir	P991/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in RECLAIMING MOTION in the cause M. M. Petitioner and Respondent: against A. M. R. or M. Respondent and Reclaimer; _______

 

 

Act: Miss Hodge; Morton Fraser (Petitioner and Respondent)

Alt: Miss Wylie; Balfour & Manson (Respondent and Reclaimer)

14 November 2002

The petition

1. This is a reclaiming motion by the respondent against the decision of the Lord Ordinary in a petition under the Child Abduction and Custody Act 1985. The petitioner seeks inter alia an order on the respondent to return the three children of the parties to the United States of America. The petition is founded on the provisions of the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") to which the 1985 Act gives effect. By Interlocutor dated 18 October 2002 the Lord Ordinary granted the order sought.

The background

2. The parties have three children born in 1996, 1998 and 2001 respectively. They lived together with the children at the matrimonial home in Michigan until 3 May 2001. On that date, the respondent travelled to Scotland with the children in order to spend a holiday with her parents in West Lothian. The respondent and the children had tickets for the return flight to the United States on 2 August 2001. The petitioner consented to the respondent's taking the children to Scotland for that purpose and for that period.
3. During July 2001 the respondent informed the petitioner that she had decided not to return to the USA. She and the children have remained with the respondent's parents ever since.
4. On 16 August 2002 the petitioner presented this petition. If the petition had been brought within the period of one year from the date of the wrongful retention, the court would have been obliged under article 12 of the Convention to order the return of the children forthwith. The Lord Ordinary held that the precise date of the retention of the children was a point on which nothing turned. He appears to have favoured the view that the retention occurred in July 2001 when the respondent informed the petitioner of her decision not to return to the United States with the children. In our view, the retention occurred on 2 August 2001, the date when the respondent acted upon that decision and thereby broke the agreement to which the petitioner had consented. On either view, the petition was lodged only a matter of weeks after the one year period elapsed. We consider that that is a significant factor to be taken into account in relation to the issue raised in this reclaiming motion.
5. Before 3 May 2001, the children were habitually resident in Michigan. The law of that state confers on the parties joint rights of custody. That state remains the place of the children's habitual residence. The respondent has retained the children in Scotland in breach of the petitioner's rights. At the time of the retention, the petitioner's rights were being actually exercised. It is agreed that the retention of the children was therefore "wrongful" within the meaning of the Convention (cf. art. 3).

The decision of the Lord Ordinary

6. The Lord Ordinary has set out the relevant provisions of the 1985 Act and of the Convention. Since the issue in this reclaiming motion is a short one, we need not quote them again. The case was argued before the Lord Ordinary on the basis that his decision should be made, for or against the petitioner, in respect of all three children alike. The reclaiming motion has been presented and argued on the same basis.
7. There were only two issues before the Lord Ordinary; namely (1) whether an order for the return of the children should be refused on the basis that the petitioner had acquiesced in the wrongful retention (art. 13(a)); and (2) whether the order for return should be refused because the children were now settled in their new environment. On the agreed facts, and on the affidavits and productions, the Lord Ordinary found against the respondent on both issues. He held that on each of them the respondent had failed to discharge the onus incumbent on her. He therefore held that the petitioner was entitled to the remedies that he seeks.
8. Counsel for the respondent challenges that decision on the first issue only. She submits that the Lord Ordinary erred in two respects in his consideration of the facts.
9. Counsel for the respondent accepts that the onus of proving acquiescence rests upon the respondent throughout. She accepts that the Lord Ordinary applied the correct test on that question in the context of the Convention, and in particular that he was right in adopting the test formulated by Lord Browne-Wilkinson in In re H & Others (Minors)(Abduction): Acquiescence) ([1998] AC 72 at pp. 87 - 88). According to that test, the court must ascertain the subjective intentions of the wronged parent. That is a pure question of fact. In deciding it the court is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind. It is a matter of inferring actual subjective intention from outward and visible acts.
10. Counsel for the reclaimer argued that in taking that approach to the facts of this case the Lord Ordinary had made two specific errors. First, he had erroneously found that during the period between the retention of the children and the raising of this petition, the petitioner had made over 70 telephone calls to the respondent. The Lord Ordinary had relied on that as evidence pointing against acquiescence. Second, the Lord Ordinary had erred in failing to take proper account of the petitioner's delay in raising proceedings. Counsel for the reclaimer submitted that in the application of article 13(a), the passage of a significant period of time during which a party takes no action to enforce his rights can of itself give rise to a legitimate inference of acquiescence (Friedrich v Friedrich, 78 F. 3d 1060 (1996)). In this case there was such a period of time. When considered against the primary purpose of the Convention, which was to secure the prompt return of children in a case of this kind, the petitioner's inaction indicated acquiescence.

Decision

11. The starting point in our consideration of this reclaiming motion is that the respondent removed the children from the jurisdiction in which they had been born and brought up and were domiciled, to a jurisdiction with which they had no previous connection. She thereby forced the petitioner to sue in what is for him a distant foreign court in order to enforce his rights. In the framework of the Convention it is the fundamental duty of this court, since the retention has been wrongful, to order the return of the children to their proper jurisdiction (Soucie v Soucie 1995 SC 134). Article 13(a) provides that we are not bound to do so if the respondent establishes that the petitioner has acquiesced in the wrongful retention. Even if acquiescence were to be established, the court, although not bound to do so, would nonetheless be entitled in its discretion to grant the order. That would involve a wider consideration of the welfare of the children.
12. In our opinion, both of the arguments put forward by counsel for the reclaimer are unsound. It is agreed that the Lord Ordinary erred in his finding in relation to the telephone calls; but the Lord Ordinary does not suggest in his Opinion that that finding was crucial to his decision. On the contrary, his Opinion shows that his finding on the point was merely one adminicle of evidence in a wider body of evidence that excluded the inference of acquiescence.
13. We agree that when the question of acquiescence is considered in the context of article 13(a), the lapse of time is a significant consideration. If a petitioner were to delay for a number of years before raising proceedings, that delay alone would almost certainly imply acquiescence. On the other hand, if the delay is only a matter of weeks or months, that delay would not necessarily, in our opinion, be a sufficient basis for the plea. But in all cases of this kind, a delay in the raising of proceedings has to be considered in the wider context of the facts and circumstances as a whole.
14. The petitioner raised this petition only a matter of weeks after the elapse of the one year period to which we have referred. If he had raised the petition a few weeks sooner, the result of his petition would have been inevitable.
15. Where delay is founded on as a basis of acquiescence, the first question is whether there is a reasonable explanation for it. The petitioner has offered several explanations for his failure to raise proceedings at an earlier date. We need not go into the details. It is sufficient to say that he had financial problems, which he considered to have been caused in part by the respondent's departure; he had medical problems; and he lost his job. These considerations appeared to the Lord Ordinary to represent a reasonable explanation for the delay.
16. But there are other significant considerations. Throughout the period from August 2001 to 5 November 2001, the petitioner sent a succession of e-mails to the respondent, all of which clearly conveyed to her the fact that he did not agree to her retaining the children in Scotland. These e-mails also indicated that the petitioner was anxious not to resort to litigation if the matter could be resolved amicably, and that he was deterred by considerations of expense from instructing lawyers in the United States. In the event, in July 2002, after a friend researched the matter on the Internet, the petitioner contacted a Scottish solicitor who informed him of the service offered by the United States Central Authority in assisting citizens of the USA to enforce their rights under the Convention. By then the petitioner had obtained employment and was in a better position to pursue his claim. Finally, it is clear that throughout the period between the retention of the children and the raising of this petition, the petitioner gave no indication of any kind, whether by word or deed, that he acquiesced in the respondent's conduct. His raising of the petition was precipitated by a residence application made by the respondent to the sheriff at Linlithgow.
17. Our conclusion is that the Lord Ordinary, notwithstanding the error to which we have referred, was entitled on all the material before him to reach the conclusion that he did on the subject of acquiescence. In our opinion, the conclusion that he reached was plainly the correct one on the information before him.
18. The respondent has therefore failed to discharge the onus incumbent on her under article 13(a) of the Convention and the question of our exercising our discretion whether or not to order the return of the children does not arise. The petitioner is entitled to the order that he seeks.
19. We shall therefore refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary. Paragraph 2 of that interlocutor allows the respondent to apply, if necessary, for prorogation of the period of six weeks for the return of the children to the United States. We understand from counsel for the respondent that her application for a visa to enable her to take the children there is presently being processed. If the visa is not granted in time, it will be open to the respondent to enrol for a prorogation of the six-weeks period.