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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 66
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OPINION OF LORD MALCOLM
in the Petition
A M
Petitioner;
for
An order under the
Child Abduction and Custody Act 1985
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Hayhow;
Anderson Strathern
Respondent: Stirling; Wylie; Gillespie Macandrew
For the child; Drummond Miller, W.S.
28 March 2007
[1] This
is a petition at the instance of the father of a 14 year old girl (EM) seeking
an order under the Child Abduction and Custody Act 1985 ("the 1985 Act") and
the Hague Convention on the Civil Aspects of International Child Abduction
("the Convention") requiring her mother (the respondent) to return EM to
Australia where the petitioner resides.
The parties emigrated from Scotland
to Australia in
1998 when EM was 6 years old. The
marriage ran into difficulties. The
parties finally separated in December 2005.
The Family Court of Australia at Adelaide
has granted them shared parental and residence responsibilities for EM. After the separation EM spent alternate weeks
with her mother and father. In January
2007 the respondent informed EM that she was returning to live in Scotland. EM decided to go with her. The petitioner was not informed of these
arrangements. He last saw EM on 2 February 2007 when he delivered
her to school. Shortly thereafter EM and
her mother travelled to Scotland.
[2] At
a continued first hearing on 22 March
2007 certain matters were not in dispute. It was agreed that prior to her removal EM
was habitually resident in Australia, and that her removal was wrongful in
terms of Article 3 of the Convention. It
was also agreed that in terms of Article 13 EM has attained an age and
degree of maturity which makes it appropriate that her views are taken into
account. It was also agreed that the
petition could be resolved now on the basis of the affidavits and other
material lodged in process, along with the submissions of counsel. Standing the terms of Article 12, the
practical result is that the petitioner is entitled to the order sought unless
I am satisfied that one or both of the two grounds of defence relied upon under
Article 13 of the Convention have been established, and that it is appropriate
that I refuse the petition. So far as
relevant for present purposes, Article 13 provides that:-
"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 -
(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".
[3] The
onus being on the respondent to establish one or both of these matters, it was
agreed that counsel for the respondent would open the hearing. Miss Stirling for the respondent concentrated
on the issue of grave risk, and Miss Wylie for EM focused her submissions on
the impact of the views of EM. Before
considering their submissions and the supporting evidence, it is appropriate to
notice the following. The purpose of the
Convention is that disputes of this nature should be resolved by the court of
the child's habitual residence prior to his or her removal. The Convention "requires strict application
and imposes a high threshold for justifying the withholding of an order for
return" - W v W [1st Div] 2003 S.L.T.1253 at 1257G. Thus, for example, even when the court is satisfied
that a child of sufficient age and maturity has a genuine and valid objection
to returning to that jurisdiction, nonetheless it will only be in an
exceptional case that this will justify refusal of an order under the
Convention. This was the approach
adopted by Ward, L.J. in Re T [Abduction:
Child's Objections to Return] 2002 F.L.R.192 at pages 202-3. Further, in the Opinion of an Extra Division
in Singh v Singh 1998 S.C.68 at 72 it was stated that the objection of a
sufficiently mature child should only be upheld in situations which are
exceptional. Reference can also be
made to the judgment of Lord Donaldson of Lymington M.R. in C v C
[1989] 1 W.L.R.654 at 664, which proceeded upon the basis that, "save in
an exceptional case", the concern of the court considering a request under the
Convention should be limited to giving the child the maximum possible
protection until the courts of the other country can resume their normal role
in relation to the child. Many of the
cases make reference to certain observations of Butler-Sloss L.J. in the
same case at 661:
"Is a parent to
create a psychological situation, and then rely upon it? If the grave risk of psychological harm to a
child is to be inflicted by the conduct of the parent who abducted him, then it
would be relied upon by every mother of a young child who removed him out of
the jurisdiction and refused to return.
It would drive a coach and four through the Convention, at least in
respect of applications relating to young children. I for my part cannot believe that this is in
the interests of international relations.
Nor should the mother, by her own actions, succeed in preventing the
return of a child who should be living in his own country and deny him contact
with his other parent".
Butler-Sloss L.J. then
referred to a passage in the judgment of Balcombe L.J. in In Re E (a minor) (Abduction) [1989] 1
F.L.R.135, at 142:
"The whole
purpose of this Convention is ....to ensure that parties do not gain advantage by
either removing a child wrongfully from the country of its usual residence, or,
having taken the child, with the agreement of any other party who has custodial
rights, to another jurisdiction, then wrongfully to retain that child".
[4] In
I, Petitioner 2004 S.L.T.972
Lord Menzies referred to the following observations of the United States
Court of Appeals in Friedrich v Friedrich 78F 3d 1060 (1996), which
he considered shed some light on the proper approach to applications under the
Convention:
"In thinking
about these problems, we acknowledge that courts in the abducted-from country
are as ready and able as we are to protect children. If return to a country, or to the custody of
a parent in that country, is dangerous, we can expect that country's courts to
respond accordingly .... When we trust the court system in the abducted-from
country, the vast majority of claims of harm - those that do not rise to the
level of gravity required by the Convention - evaporate".
The observations continued that the
person opposing the child's return must show that the risk to the child is
grave, not merely serious:
"A review of
deliberations on the Convention reveals that 'intolerable situation' was not
intended to encompass return to a home where money is in short supply, or where
educational or other opportunities are more limited than in the requested
state. An example of 'an intolerable
situation' is one in which a custodial parent sexually abuses the child
...Although it is not necessary to resolve the present appeal, we believe that a
grave risk of harm for the purposes of the Convention can exist only in two
situations. First, there is a grave risk
of harm when return of the child puts the child in imminent danger prior to the
resolution of the custody dispute - e.g. returning the child to a zone of war,
famine, or disease. Second, there is a
grave risk of harm in cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country of habitual residence, for
whatever reason, may be incapable or unwilling to give the child adequate
protection".
Finally in this context, I should
record that all counsel invited me to approach EM's objection in the manner set
out by Lady Smith in M Petitioner
2005 S.L.T.2 at paragraph 38 of her opinion.
Thus I need not dwell on whether the application of that approach might
conflict with that adopted by the First Division in W v W, in the sense of
creating a risk of a different overall outcome.
For myself I doubt it. I consider
that the differences are more apparent than real.
[5] The
picture which emerges from the affidavits and the other material lodged in
process can be sketched out as follows.
The parties separated for the first time in May 2001. A financial settlement was negotiated. They reconciled in November 2002. The respondent hurt her back in 2004, which
restricted her ability to work.
Relations between the parties deteriorated, and the respondent left the
petitioner, thereafter renting a property for herself, her elder daughter, S,
and EM. S is now an adult and continues
to live in Australia. EM lived week about with each parent. She found certain aspects of living with her
father difficult. As an adolescent
female some of her emotional and other needs were better met by her
mother. She also had to cope with both the
breakdown of her parents' marriage and a very unsettled home life. Understandably this was stressful for
EM. She began to suffer stomach pains
and regular and repeated vomiting. She
was told that this might be stress related.
By letter of 28 December 2006
to EM's general practitioner, Dr Hammond, a paediatric gastroenterologist,
stated that her symptoms are "strongly suggestive of gastro-oesophagal reflux
disease". Medical investigations
designed to diagnose the problem have not taken place because of EM's return to
Scotland. Since her return to Scotland EM's stomach
pains and vomiting have not occurred, and EM feels better. That said, counsel for the respondent and for
EM accepted that no causal link between EM's health problems and contact with
the petitioner has been established. As Mr Hayhow
for the petitioner observed, the provisional views of Dr Hammond point to
a clinical condition which may well be capable of effective treatment. Meantime it could simply be in remission.
[6] Reverting
to the period after the final separation, the respondent suffered financial
difficulties. In January 2007 she
decided to return to Scotland. She asked EM whether she wished to return
with her. EM decided to do so. The petitioner and EM's school were kept in
the dark, and no steps were taken to regulate the position in respect of the
Australian court order on shared custody.
The purpose of the present proceedings is to allow the Australian court,
as the court of EM's habitual residence, to regulate matters in the light of
her mother's intention to live permanently in Scotland. In the meantime it would appear that EM is
happy and well settled in Scotland.
She does not want to return to Australia.
She wants to stay here with her mother and her extended family. The respondent is concerned that if she
returned to Australia,
she would experience the same financial problems. In any event she would have difficulty in
paying the necessary travel costs without the assistance of her family. In her first affidavit the respondent
indicated that if she received a financial settlement from the petitioner she
might consider her return to Australia. The petitioner has lodged a letter to him
from the respondent's Australian agents dated 26 February 2007 in which it was said that the
respondent would return to Australia
with EM in return for a payment of Australian $8,000, plus $2,000 for legal
costs, in full settlement of the respondent's financial claims. The letter continued that thereafter the
respondent would wish the issues of residence, education and child support to
be resolved in Australia. The letter also referred to the "shared care"
arrangement, and recorded that the respondent had instructed her agents that up
to this point EM had been vomiting because of the stress of the family
situation, and that since the return to Scotland,
the vomiting had stopped. In her answers
to the petition the respondent avers that EM found the arrangements for her
care in Australia
to be stressful. This is confirmed in
EM's answers.
[7] The
petitioner has lodged material from various independent sources which give
further information as to EM's life in Australia
before her departure. Broadly she was
happy, settled, and doing well at her local school. She had many friends there, both teachers and
students. Her place at school remains
open. The
petitioner and his parents speak to a good relationship between the petitioner
and EM, and to EM being happy and contented in Australia. There is a concern that EM is not attending
school at present, though I was informed that she would repeat a year if she
remained in Scotland.
[8] Against
this background, and bearing in mind the correct approach to the Convention as
outlined above, I now turn to consider whether the respondent has satisfied me
that an order for the return of EM would create a grave risk that she would be
exposed to physical or psychological harm or otherwise be placed in an
intolerable situation, such as would justify the refusal of the petition. If an
order for return is granted, and even if the respondent remained in Scotland,
something which I judge to be unlikely, it is plain that EM could be cared for
by the petitioner in surroundings and circumstances which are familiar to
her. Her adult half-sister would be
nearby. EM could recommence her
schooling and, if appropriate, undergo the medical investigations mentioned by
Dr Hammond in his said letter. The
sole purpose of the return would be to allow the Australian court to address
and determine the future arrangements for the care and custody of EM. Miss Stirling submitted that the health risks
for EM if she was returned to Australia
would fall within the terms of Article 13(b). However, whilst a return to Australia
would no doubt be stressful for EM, and there may be a recurrence of the
vomiting problems, I do not consider that the kind of grave risk envisaged by
the Convention would arise. This is all
the more so if, as I would expect, the respondent returned to Australia
with EM. In that event EM need not be
separated from her mother while the Australian court resolved the current
dispute. As noted above it has been said
that the kind of risk which would justify a refusal of the requested order
would be return to a war zone or to a child abuser, or to some other risk of
that nature and gravity. That would
create the kind of exceptional circumstance which would meet the high test for thwarting
the purpose of the Convention that the court of habitual residence should determine
the future arrangements for the care of the child. In my view it is plain that nothing of that
kind arises in the present case.
[9] In
addition to the health concerns, emphasis was placed by Miss Stirling on the
likelihood that the respondent would again face financial difficulties if she
returned to Australia. That might be true, but, as counsel for the
petitioner observed, Article 13(b) is aimed at the position of the child, not
that of the abducting parent. In any event I do not consider that the possible
financial problems would be of such a nature as to cause an intolerable
situation for either the respondent or EM. It is worth stressing that the purpose of the
return would be to resolve the arrangements for EM, on the basis that the
respondent was relocating to Scotland.
The respondent would not be locked into a long term future in Australia. Further, she would obtain state benefits and
a degree of support from the petitioner. She might also seek employment while
there, though no doubt the reasonable expectation is that the Australian court
would resolve matters in an expeditious manner.
Thus I reject Miss Stirling's submission that the financial concerns
and/or the health risks for EM satisfy the requirements of Article 13(b) of the
Convention. In the course of her
submissions Miss Stirling made reference to various authorities. However, this was principally in the context
of examples of the Convention being applied, with each case turning on its own
facts and circumstances. I do not
consider it necessary to discuss these cases.
[10] I now turn to the second ground of defence relied on, namely
that EM objects to being returned to Australia. As one might expect in the light of the
scheme underlying the Convention, even a relatively mature abducted child does
not have a veto over return. It must be
common for a child to desire stability and want to continue living with her
mother, especially when, as here, she voluntarily chose to travel with her
mother. However, the child's objection
is to be upheld only in exceptional circumstances, the implication being that
in most cases the court will exercise its discretion to overrule the child's
immediate wishes. In her affidavits EM
has not been asked to address the specific and limited purpose of a return to Australia,
namely to allow the court there to address the arrangements for her
future. Rather she mentions the various
features of her life in Australia
which caused and continue to cause her concern, including her health
problems. She stresses her need to
remain with her mother, although she is keen to maintain a good relationship
with her father and would be willing to spend long vacations with him. Miss Wylie submitted that EM's views
should be upheld because of her concern that a return to Australia
would trigger a recurrence of her health problems. She also pointed out that EM is only sixteen
months away from being of an age beyond the scope of the Convention. Her family is Scottish and its base is in Scotland.
In addition a return to Australia
would mean that she would miss some of her schooling. If she remains in Scotland
the plan is that she would repeat a year.
It was submitted that the combination of these factors justified refusal
of the petition.
[11] EM's desire to remain in Scotland
with her mother and her wish not to undergo the stresses, strains, and
uncertainties which a return to Australia
would create are natural and understandable.
However, such disruption and associated anxieties will be inherent in
many if not most cases where the Convention is applied. There is the added factor in this case of
EM's understandable anxieties about her vomiting problems, which have cleared
up since she came to Scotland. However I consider that counsel for the
petitioner was well founded in his submission that EM's main concern is the
possibility of being separated from her mother, rather than any root and branch
objection to returning to Australia. At no stage has the respondent said that she
would not return with EM, and towards the end of the hearing it was indicated
that, if necessary, she would borrow money from her family to do so. If her mother were to return to Australia
with EM, this would do much to reassure EM.
That said, even if the respondent did not return to Australia with EM, and
having regard to the reasons which lie behind EM's desire not to return to
Australia, all as set out in her first affidavit, and taking into account the
submissions of her counsel, I find nothing of sufficient weight nor of such a
special nature as would justify a refusal to implement the scheme of the
Convention, namely that it should be the Australian court which weighs EM's
views in the balance when determining the future arrangements for her care. Given EM's age and maturity it might be said
that an Australian court is likely to uphold her wishes and sanction her care
in Scotland,
thus there is little to be gained from an order for her return. However, until she reaches sixteen years of
age, the Convention applies to EM, and, for the reasons given above, I have
decided that it should be implemented in this case. I must keep in mind that it is not my task to
determine what is and what is not in EM's best interests nor to regulate the
respective rights and responsibilities of her parents; but rather I have to decide whether a
Convention defence has been established, something which arises only in cases
of an exceptional nature. This is not
such a case.
[12] In all these circumstances I will make the requested order for
return of EM to Australia,
and meantime I put the case out by order to discuss the practical arrangements.
