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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 55
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OPINION OF LADY
PATON
in the petition of
AL
Petitioner;
for
AN ORDER UNDER THE
CHILD ABDUCTION AND CUSTODY ACT 1985
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Stirling,
Advocate; Anderson Strathern
Respondent: Innes, Advocate; Beveridge & Kellas
15 March 2007
Wrongful
retention of child in Scotland
[1] The
petitioner is an Australian, born on 14 May
1961. The respondent is a Scotswoman born on 16 October 1973. They met in 1999 when the respondent was
travelling in Australia. In 2000, they began living together. Their child K was born on 8 July 2001.
[2] The
family lived near Cygnet, in Tasmania. The respondent worked, picking fruit and
mushrooms. The petitioner did not
work. He looked after K when the
respondent was at work. Both parties
looked after K at all other times, including weekends, periods of unemployment
and holidays.
[3] Each
party's extended family played a part in K's life. The petitioner's mother (a retired teacher),
a sister and a brother, live near the petitioner in Tasmania. K has visited his paternal grandmother, and
has stayed overnight. The respondent's
family live in Scotland. In 2003 K was brought to Scotland by both parties to visit
the respondent's family, including the maternal grandparents and the
respondent's two sisters. The visit
lasted several months. In 2004 the
respondent's sister LD visited the parties and K in Australia.
[4] In
2005 K began attending a play group in Cygnet.
He was enrolled to begin in the local primary school in February 2007.
[5] The
parties' relationship began to deteriorate.
Friends and relatives noticed that the respondent was no longer
happy. In early 2006, the parties agreed
that the respondent should bring K to Scotland to visit her family. The visit was to last from 6 February 2006 until 6 June 2006 (the date of the return flight). During the visit to Scotland, in about April 2006,
the respondent entered into a relationship with AP (date of birth 4 May 1966). Subsequently
on 6 June 2006, she did not travel back to
Australia with K. She and K remained in Scotland, living with Mr P in Bonar Bridge (where her parents also
reside). K attends the local Scottish
primary school. He speaks to his father
weekly by telephone. The respondent is
currently pregnant to Mr P, and the baby is expected on 3 May 2007. Her general
practitioner has advised against air travel until 4 weeks after the birth.
[6] The
petitioner did not consent to K's remaining in Scotland. He took legal advice. The respondent put forward a proposal that K
should live with her, in Scotland, for six months each
year, and that he should live with the petitioner in Australia for the remaining six
months. The petitioner did not accept
that proposal. He began proceedings in
terms of the Convention on the Civil Aspects of International Child Abduction
(the Hague Convention), seeking K's return to Australia. That Convention was made effective in the United Kingdom by section 1(2) of the
Child Abduction and Custody Act 1985.
[7] In the
context of the Convention proceedings, parties are agreed that (i) K's habitual
residence is in Australia; (ii) K was
wrongfully retained in Scotland on 6 June 2006; (iii) the petitioner has rights of custody in
terms of the Hague Convention; (iv)
the proceedings under the Hague Convention began within one year of the
wrongful retention in terms of Article 12, and accordingly (v) the court
must make an order returning K to Australia unless the respondent can
demonstrate that there is a grave risk that his return would expose him to
physical or psychological harm or would otherwise place him in an intolerable
situation: Article 13(b) of the
Hague Convention.
Whether return
would result in grave risk: Article 13(b)
[8] As the
onus of establishing grave risk falls upon the respondent, it was agreed that
counsel for the respondent should address the court first.
Submissions on behalf of the respondent
[9] Counsel for the respondent accepted that a mother could not subvert the
Hague Convention by personally refusing to return to the child's country
of habitual residence, thus setting up a defence to a return order. Counsel further accepted that the test in
Article 13(b) of the Convention is a high one, and not simply a
consideration of the child's welfare: C v C
(Abduction: Rights of Custody) [1989]
1 W.L.R. 654, at pages 660-661.
Nevertheless, she submitted that there could be circumstances in which a
return order would be refused on the basis of Article 13(b). Reference was made to Re M (Abduction: Psychological
Harm) [1997] 2 F.L.R. 690, at pages 694-5 and 699; C v
C, 2003 S.L.T. 793 paragraphs [21] to
[25] and [30]; D v D (Child
Abduction: Non-Convention Country) [1994]
1 F.L.R. 137, at pages 140-144; and
W v W, 2004 S.C. 63, paragraphs [13] and [18].
[10] In the
present case, affidavits and productions had been lodged on behalf of both
parties. If disputed facts emerged from
those documents, the court should not rely on any version of the conflicting
evidence unless there was extraneous, independent material supporting a
particular version: D v D, 2002 S.C. 33 at
page 37D. Counsel then addressed
the court on the evidence in three chapters, namely (i) the respondent's
pregnancy; (ii) K's care
arrangements; and (iii) issues raised by
the respondent in relation to the defence of grave risk. No argument was presented suggesting that the
petitioner would be unable to support K financially.
(i) The
respondent's pregnancy
[11] Counsel
referred to affidavits from the respondent and Mr P; to letters from the respondent's general
practitioner; and to airline information
down-loaded from web-sites. The
respondent had been medically advised not to travel. It was reasonable for her to accept that
advice. This was not therefore a case
where the respondent was refusing to return to the child's country of habitual
residence. The respondent was in fact
unable to return at this stage.
(ii) K's care arrangements
[12] It was accepted that the possibility of K's return to Australia without his mother had to
be examined against the background of the history of K's care arrangements to
date. There were disputes in fact about
those care arrangements.
Care in Australia: 8 July 2001 to 6 February 2006
[13] The
petitioner claimed to have been K's primary carer for the first five years
of his life (2001 to 2006). He
maintained that the parties had agreed that the respondent should go out to
work, and that the petitioner should stay at home and look after K. The respondent's position however was that
there had been no such agreement. It was
true that the respondent had de facto been
out working, leaving the petitioner at home responsible for K's care. But the respondent had made an equally
significant contribution to K's care.
She had looked after K whenever she returned from work, during evenings,
during periods of unemployment, and on holidays, all as detailed in her own
affidavits and in affidavits by AB (a Scot who lived in Tasmania), by LD (the
respondent's sister, who had visited Australia), and by LP (a Scottish
hotel-owner living in Spinningdale, Sutherland, Scotland). K had attended a kindergarten group at Cygnet Primary School in Australia in 2005. Reference was made to letters from the
school, vouching the fact that K had been brought to the group by the
petitioner on nine occasions; by the
respondent on eight occasions; and on
one occasion by a grandparent.
Care in Scotland: 6 February 2006 to date
[14] Counsel
accepted that, as a result of the wrongful retention, the petitioner had had no
face-to-face contact with K for the past year.
However it was not the case (as was alleged by the petitioner) that K
was being looked after by the respondent's parents. It was true that the respondent had obtained
employment as an assistant cook with the Caledonian Curry Company, and was
working from 9.30 a.m. until 3 p.m. But it was the respondent who took K to
school, who collected him from school, and who generally looked after him. The respondent was not working at weekends,
and was able to look after him at those times.
If K was ill, the respondent's employer allowed her time off. While K enjoyed staying with his maternal
grandparents, it was the respondent who
looked after him. That fact was
confirmed by her father's affidavit.
After the birth of the new baby in May 2007, the respondent did not
intend to return to work.
Issues raised
by respondent in relation to defence of grave risk
The petitioner's lifestyle
[15] The
respondent had serious reservations about the petitioner's lifestyle. When she was living in Australia, she had often returned
home from work to find the petitioner drinking and smoking. He also smoked cannabis. He had attacked her in the past, causing
distress to K. He did not work or
contribute financially to the household.
He sat watching TV, drinking, and smoking. He was unwilling to change his habits. He had convictions for drink driving. There was a concern that K had been in the
car with him on his most recent drink driving offence. (The petitioner had simply not answered that
allegation in the pleadings). The
petitioner's behaviour changed when he was drunk. He became angry and unpleasant. The petitioner had other convictions, all as
set out in the Schedule of Convictions.
The respondent was concerned that if K went to live in Cygnet without
her, the petitioner would continue drinking and smoking cannabis. In the past, there had been indications of
erratic and unpredictable conduct on his part.
The petitioner would always put his own wishes before K's needs.
The petitioner's attitude
towards the respondent
[16] The
petitioner had adopted a very negative attitude towards the respondent. He called her a slapper and a liar, and had
suggested that she should "jump in a lake" (Australian for committing
suicide). The respondent was concerned
that K would be encouraged to take a poor view of her, and that the petitioner
would try to turn K against her.
Resultant grave risk
[17] The
respondent's position was therefore that if K were to be returned to Australia without her, he would be
exposed to a grave risk of harm. He
would be exposed to the petitioner's drunkenness, and to a general environment
of drinking and drug-taking. He would be
at risk of coming to harm because of the petitioner's irresponsible behaviour
(for example, being in a car with a drunk driver). He was at risk of psychological harm as a
result of the petitioner's attitude to the respondent. All of those risks could be obviated only if
the respondent was in a position to return to Australia with K. None of the respondent's family was available
to accompany K to Australia.
[18] If a
return order were to be granted, K would be returned to Australia without his mother. The respondent had always been a constant
figure in the child's life. If he had to
be separated from her, he would be exposed to a grave risk of psychological harm,
or would otherwise be placed in an intolerable situation.
[19] Counsel
added that the petitioner would raise the possibility of shared care. The respondent had tried to reach an
agreement with the petitioner during the summer of 2006. She had suggested that K spend six months
each year in Australia with the petitioner, and
the remaining six months in Scotland with her. However counsel submitted that the fact that
the respondent had tried to reach an agreement with the petitioner, without
legal advice, and without thinking through the consequences of her proposals,
should not be held against her.
[20] Accordingly
the prayer of the petition should be refused.
However, if the court were of the view that a return order should be
made, and that the concerns about K would be obviated if the respondent
returned to Australia with K, counsel submitted that any return order should be
suspended until the respondent's baby was born:
cf. W v W, 2004 S.C. 33.
Submissions on behalf of the petitioner
[21] Counsel
for the petitioner invited the court to make a return order immediately, and to
put the case out By Order in seven days to enable parties to advise the court
that K had returned to Australia. Counsel further advised that the petitioner
was entitled to funding from the Australian government for the cost of his
travel to Scotland, and his and K's travel to Australia. The petitioner was expected to arrive in Scotland within the next few days,
subject to confirmation of his flight.
[22] Prima facie, in terms of Article 12
of the Convention, there was no option but a return order. Only if a grave risk of harm could be made
out was any other option possible. When
assessing grave risk, it was important to examine the parties' history. The petitioner's position was that he had
been K's primary carer as the respondent was out working. It was also his contention that the parties
had agreed on such an arrangement. Thus
the respondent had allowed the petitioner to look after K in the very
circumstances which she now claimed amounted to "grave risk". Furthermore, as recently as October 2006
the respondent had proposed an arrangement whereby K would live with the
petitioner (without the respondent) in Australia for six months, and
then live with the respondent (without the petitioner) in Scotland for six months. In all the circumstances, it was very
difficult to accept that the defence of grave risk advanced by the respondent
could succeed.
[23] Counsel
then presented submissions in four chapters:
(i) the elements of grave risk upon which the respondent relied; (ii) the respondent's evidence (affidavits
and productions) taken pro veritate; (iii) relevant authorities; and (iv) challenges to the respondent's
evidence.
(i) The
elements of grave risk upon which the respondent relied
Inability to fly
[24] The
respondent relied upon her inability to fly, due to her current pregnancy. However there was no suggestion that, were
the respondent able to travel with K, any grave risk would arise. Thus any risk relied upon appeared to arise
not from the return to Australia, but from the respondent's
being unable to accompany K on the journey.
Circumstances in Australia
[25] On the
assumption that K were to be returned to Australia without the respondent, the
elements of grave risk relied upon by the respondent were: K's separation from the respondent; the petitioner's abuse of alcohol and
cannabis; his behaviour when under the
influence of drink; his friends' use of
alcohol and/or cannabis; his criminal convictions; his sending of abusive texts to the
respondent; his belittling of the
respondent; and the respondent's fear
that the petitioner would encourage K to take a negative view of her.
[26] Counsel
submitted that, in order to assess the elements noted above, it was necessary
to examine the respondent's evidence, taking it pro veritate.
(ii) The
respondent's evidence, taken pro veritate
[27] Counsel
referred to various passages in the respondent's productions and affidavits,
and summarised the petitioner's response to the elements of grave risk relied
upon by the respondent as follows:
Flying
[28] It was
of some significance that the respondent's pregnancy had begun after the respondent was aware that the
petitioner had initiated child abduction proceedings. The respondent could have undertaken air
travel at earlier dates, and thus have returned K to Australia. Thus even if she was currently unable to fly,
her inability had arisen as a result of her own inactivity in the face of
requests to return. In any event, the
letters containing the medical opinion advising against flying did not state
that there was anything unusual or complicated about the respondent's
pregnancy. Airlines such as Qantas and
British Airways accepted pregnant women passengers up to the 36th
week. Accordingly the respondent could
still fly. Furthermore, any inability to
fly was perhaps irrelevant, as the petitioner was volunteering to come to Scotland to collect K.
Separation from the respondent
[29] In the past, the petitioner and the respondent had shared the
care of K. The petitioner had looked
after K on his own when the respondent was at work. In those circumstances, the respondent could
not claim grave risk based on K's separation from her.
Drink, drugs, and
convictions
[30] Many of
the petitioner's previous convictions were old.
They stopped in 1985, the next offence being 1998. The only significant offences were three in
number, namely two drink driving offences (accepted to be serious) and one
conviction for disorderly conduct.
Counsel did not know whether K had been in the car at the time of the
most recent drink driving offence. In
relation to drinking and smoking cannabis, the weight of the evidence suggested
that the petitioner drank and smoked in the company of adult friends, when K
was not present.
Attitude towards the
respondent
[31] The
affidavits mainly recorded difficulties in the parties' relationship, and the
respondent's fear that the petitioner would adversely affect K's view of her. However that fear was not founded on
evidence. There was no evidence that the
petitioner had ever tried to turn K against his mother. In his application to the Family Court of
Australia (HBF1198/2006), the petitioner requested the court to order that K
live with him, but that K should also spend time with the respondent.
[32] Counsel
ultimately submitted that most of the allegations made against the petitioner,
taken pro veritate, related to the
parties' relationship, and not to any adverse effect which the petitioner's
behaviour had on K.
(iii) Relevant
authorities
[33] Counsel
submitted that grave risk constituted a very high test. Reference was made to C v C (Abduction: Rights of Custody) [1989] 1 W.L.R. 654,
at pages 660‑661 and 664; Whitley Petitioner, 1998 Fam.L.R. 7,
paragraphs 2-13 to 2‑16, and 2-27 to 2-28; I,
Petitioner, 2004 S.L.T. 972, paragraphs [20] to [26]; McCarthy
v McCarthy, 1994 S.L.T. 743, at pages
745J to 747. The case of Re M (Abduction: Psychological Harm) [1997] 2 F.L.R. 690
could be distinguished on its facts: in
the present case, there was no evidence from psychologists or psychiatrists
about any severe anxiety state on the part of K. Similarly C
v C, 2003 S.L.T. 793, could be
distinguished on its facts: K was not a
13-month-old child, dependent on his mother for breast-feeding.
[34] In D v D
(Child Abduction: Non-Convention
Country) [1994] 1 F.L.R. 137, the main reason underlying the decision was
the passage of time, not the mother's pregnancy. The 3-year-old child had resided in England for half of his life; the 7‑year-old child was afraid. By contrast in the present case K had not
lived in Scotland for half his life, nor was
there any suggestion that he was afraid.
Counsel further advised the court that in two unreported cases involving
pregnant mothers (Lady Dorrian, January 2007; and Lord Hardie in W, petitioner, 13 August 2003) the court had made return
orders.
(iv)
Challenges to the respondent's evidence
[35] Counsel
for the petitioner agreed that the court should not rely on evidence about
which there was a dispute, unless there was extraneous independent material
supporting a certain version: cf. D v D,
2002 S.C. 33, at page 37D. Counsel
added that, as the onus of proof of grave risk fell upon the respondent, any
failure in proof arising from the application of D v D would mean that the
respondent had failed to prove her case.
There was no onus on the petitioner.
[36] Counsel
referred to the petitioner's affidavits.
The petitioner had been candid about his convictions. He had produced more than had been
requested. He admitted using cannabis,
although in moderation and not in K's presence.
He denied becoming angry under the influence of alcohol. He denied being physically abusive to the
respondent or being abusive in any other way.
[37] Counsel
then referred to passages in the affidavits which tended to confirm that the
petitioner was a good father to K. Even
the respondent's affidavits gave a similar picture: for example, the respondent's second
affidavit, paragraph 3, and LP's affidavit, paragraph 7. There was no evidence suggesting a grave risk
for K.
[38] It was
accepted that there had been no face-to-face contact between the petitioner and
K since February 2006: but that had
occurred because of the wrongful retention on 6 June
2006,
combined with the petitioner's financial circumstances. The petitioner had not wanted the long
separation from K.
[39] Counsel
reiterated that "grave risk" was a very high test. The petitioner's evidence and some of the
respondent's evidence suggested that there was no grave risk in the present
case. Accordingly the respondent had
failed to discharge the onus of proving grave risk. In any event, even if (contrary to counsel's
submissions) the court were to conclude that some sort of grave risk had been
demonstrated, the court should still use its discretion and decide to make a
return order, thus implementing the Convention.
[40] Counsel
concluded by submitting that any return order should not be suspended until the
respondent's baby was born. Such a
suspension would delay K's return until June 2008, which was too
protracted. Moreover Mr P might
object to the removal of the respondent's new baby from Scotland, and thus K's journey to Australia might become the subject of
repeated postponements and delays.
Discussion
[41] In this
case it is accepted that (i) K's habitual residence is in Australia; (ii) K was wrongfully retained in Scotland on
6 June 2006; (iii) the petitioner
has rights of custody in terms of the Hague Convention; (iv) the date of commencement of the present
proceedings seeking K's return falls within the period of one year from the
date of the wrongful retention; and (v)
in terms of Article 12 of the Convention, an order returning K to
Australia should be made forthwith unless the respondent can establish that
there is a grave risk that his return would expose him to physical or
psychological harm or would otherwise place him in an intolerable situation. The onus of establishing such a risk rests on
the respondent.
[42] Having
considered the pleadings, the affidavits and the productions, it is my view
that both parents have made major contributions to K's care and
upbringing. It seems to me therefore
that each parent has a well-established bond with K. K loves and trusts each parent. He is content in each parent's company, and
his needs are met by each. Moreover each
parent can offer a supportive extended family, including grandparents with whom
K has stayed overnight.
[43] There
was reference in the affidavits to the petitioner's drinking, drug-taking,
previous convictions, and denigratory attitude towards the respondent. I accept that the petitioner appears to enjoy
drinking with his friends. He admits to
smoking cannabis. He has two
drink-driving convictions (dated 15 July 1999 and 20 January 2006) resulting in periods of
disqualification (six months and eight months). He has a conviction dated 2003 for disorderly
conduct, and other more minor convictions for offences such as bald tyres,
speeding, failing to wear a seatbelt, driving while uninsured, and driving
without a licence. Furthermore it
appears from the affidavits that, as the parties' relationship deteriorated, he
has belittled the respondent both in public and in private. He has shown a degree of animosity and
resentment towards her. Nevertheless I
have not been persuaded that those more negative features of the petitioner's
lifestyle and approach have had a prejudicial effect on K. Overall, the affidavits do not in my view
disclose any behaviour adversely affecting K (including any attempt to turn K
against the respondent). There is one
unanswered issue, namely whether K was in the car driven by the petitioner on
the occasion of his most recent drink-driving offence. But in general the affidavits (including the
respondent's) give a picture of a father whose lifestyle may not be ideal, but
who takes care of his son. The
affidavits also suggest that K loves the petitioner and looks to him for guidance. Moreover the petitioner's extended family
take an interest in K, and their additional supervision provides a further
source of care and support.
[44] In the
result therefore I have not been persuaded that the high test set out in
Article 13(b) of the Hague Convention, as explained in C v C
(Abduction: Rights of Custody) [1989]
1 W.L.R. 654, has been met. I am not
satisfied that a situation involving K being in the care of his father in
Australia without his mother would result in a grave risk that K would be
exposed to physical or psychological harm or otherwise place the child in an
intolerable situation in terms of Article 13(b), although obviously it
would be preferable for K to have both parents living within relatively easy
reach of each other. Once K has returned
to Australia, it will be for the
Australian courts to resolve matters in his best interests.
[45] There
remains nevertheless the question whether the return journey to Australia itself would cause such a
grave risk. The journey from Scotland to Australia is undoubtedly a long
one. Moreover it is quite possible that
the respondent and her new partner Mr P do not intend to move to Australia. Thus K may have to set out on a long journey
knowing or suspecting that his mother may in future continue to live in Scotland, while his father lives in Australia. That is a very difficult situation for any
child, and in K's case there may well be considerable upset at the point where
he leaves the care of one parent.
[46] Against
that background, having heard the submissions and read the affidavits and
productions, there appear to be at least four travel options available to the
parties:
1. The petitioner travels from Australia to Scotland to collect K from the
respondent, and then accompanies K back to Australia. I was advised that the Australian government
would fund the travel costs in such circumstances.
2. The respondent travels to Australia with K, leaves him with his
father, and returns to Scotland without K.
3. A trusted relative of either party
accompanies K to Australia.
4. K is entrusted by the respondent to
airline staff at an airport in the UK, to be looked after by the
airline staff all the way to Australia where he would be collected
by the petitioner.
[47] There
may well be other travel options which the parties could devise. Significantly, none of the options envisaged
above would, in my opinion, result in a grave risk that K would be exposed to
physical or psychological harm, or otherwise place him in an intolerable
situation, although the fourth option is admittedly challenging for any
six-year-old.
[48] There
is an additional complication relating to the second option, namely that the
respondent is currently pregnant, the baby being expected on 3 May 2007. Medical
advice lodged in process indicates that she should not fly until four weeks
after the birth. Despite the
documentation produced by the petitioner suggesting that airlines will accept
the respondent as a passenger until the 36th week of pregnancy, I am
persuaded by the medical advice personal to the respondent contained in the
letters lodged in process that it would be inadvisable for the respondent to
fly in her current condition.
Accordingly if the second option were to be adopted, any return order
would have to be suspended until some time in June 2007: cf. W
v W, 2004 S.C. 63.
[49] In the
result, I am not satisfied that a grave risk in terms of Article 13(b) has
been made out. I therefore intend to
grant a return order. However because of
the possibility that the return order may have to be suspended depending upon
the travel arrangements (see paragraph [48] above), I shall put the case out By
Order to enable parties to advise the court which travel option has been agreed
upon. If parties are unable to agree
upon a travel option, I shall make the choice.
Decision
[50] For the
reasons given above, I intend to make a return order in terms of Article 12
of the Hague Convention. Before
pronouncing the order, I shall put the case out By Order to enable parties to
address me on the travel arrangements.
