Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 83
	OPINION OF LORD KINCLAVEN in the Petition of DR Petitioner; for An Order under the Child Abduction and Custody Act 1985 ­­­­­­­­­­­­­­­­­________________

Petitioner: Dowdalls, Advocate; Bonar Mackenzie WS, Edinburgh;

Respondent: Hayhow, Advocate; Drummond Miller LLP, Edinburgh.

13 May 2011

Introduction

[1] This is a petition seeking an order under the Child Abduction and Custody Act 1985 for the return of a young girl ("ER" who was born on 29 November 1999) to Belgium. It came before me for a second hearing on 5 and 6 May 2011.

[2] Ms Dowdalls appeared for the petitioner ("DR") - who is ER's father.

[3] Mr Hayhow appeared for the respondent ("JS") - who is ER's mother.

[4] The petition had been intimated to ER in accordance with the Rules of Court and Form 49.8-N. There was no appearance for ER. I was, however, provided with a letter from Marshall Wilson Law Group Limited dated 12 April 2011 which now forms No 10 of Process.

[5] I heard the submissions of counsel, in relation to the documents produced, over two days.

[6] Mr Hayhow accepted, correctly, that the onus was on the respondent to satisfy me that the circumstances of this case fell within Article 13 of the Hague Convention (quoted below). He invited me to refuse the order sought - by sustaining either or both of the respondent's pleas-in-law (which are contained in the Respondent's Answers as adjusted 3 May 2011).

[7] Ms Dowdalls submitted that Article 12 of the Convention applied. She invited me to grant the order sought (in terms of the prayer of the Petition as adjusted 1 May 2011).

[8] I was provided with various documentary productions - as outlined below.

[9] I was also referred to various authorities - also outlined below.

[10] I have taken into account everything that has been said by both counsel.

[11] In the whole circumstances, and for the reasons outlined below, I am not satisfied that this is such an exceptional case that I can, or should, refuse the order sought by the petitioner. In any event, I am not satisfied that I should exercise my discretion in the respondent's favour. In the result, I propose to repel both pleas-in-law for the respondent and make an order for ER's return to Belgium. In essence, I agree with the main arguments advanced on behalf of the petitioner.

[12] As requested by both parties, having decided the main question of principle, I shall appoint the cause to be heard "By Order" as soon as possible. That will enable parties to consider the question of the timing of ER's return to Belgium and also the practical arrangements for ER's return and for her support - bearing in mind that there is due to be a hearing in the Belgian Court on 31 May 2011.

[13] I hope both parties co-operate with a view to supporting ER's return.

The Petitioner's Position

[14] The petitioner's position, as outlined in the petition, was as follows.

[15] The petitioner, DR, resides in Brussels, Belgium. His date of birth is 26 July 1966. The respondent, JS, resides in Scotland. Her date of birth is 3 February 1975. The petitioner and respondent were married at Lanark on 18 November 1998. They were divorced on 22 October 2010. They are both citizens of the United Kingdom. They have one child, ER, who was born on 22 November 1999. She is a citizen of the United Kingdom. The petitioner, the respondent and the child ER lived together in Belgium from about 2004. On or about 8 July 2009 the respondent left Belgium, taking ER with her, and travelled to Scotland. She failed to return ER to Belgium by the date agreed between the parties. The Belgian Central Authority requested assistance from the Scottish Central Authority in having the child returned to Belgium. Following discussions between the parties' solicitors, it was agreed that the child would return to Belgium. ER returned to Belgium on 24 August 2009. She has lived there since. She is habitually resident in Belgium.

[16] On or about 28 August 2009, by order of the Court of First Instance of Brussels, it was ruled that the petitioner and respondent would exercise joint parental authority and that the said child would have her principal place of residence with the petitioner. Further, the respondent was prohibited from leaving Belgium with the child without written permission from the petitioner. By agreement between the parties, the respondent took the child to Scotland for the purpose of a holiday from 19 until 26 February 2011. The respondent failed to return the child to Belgium on 26 February 2011, in breach of the agreement between the parties. The respondent has retained the child in Scotland since 26 February 2011. The respondent has since refused to restore the child to the care of the petitioner. The petitioner has custody rights in respect of said child under the law of Belgium. He had and was exercising such rights at the date of the retention by the respondent of the said child in Scotland. The respondent has unlawfully retained the said child in Scotland since 26 February 2011 (and that was accepted by Mr Hayhow on behalf of the respondent). Prior to her removal to Scotland the child was habitually resident in Belgium. The respondent refuses to return the child to Belgium. ... In the circumstances, the petitioner seeks an order for return of the child ... A hearing has been fixed for 31 May 2011 (so I was informed) at the Court of First Instance in Brussels for the purpose of determining issues relating to ER's welfare.

[17] The petitioner also explains and avers that ER telephoned the petitioner on 25 February 2011, the night before she was due to return to Belgium. She told him that there was no need to collect her and that she would be staying with her mother. She said that her mum needed her more than he (the petitioner) did. The petitioner told her she would be coming home. He attended Edinburgh airport to collect ER. She was not delivered by the respondent to the airport. ER attends the International School of Brussels. She has received psychological support and counselling since first attending there. She has a propensity for telling lies. She makes up stories to gain attention. She is a vulnerable and troubled child. She has no objection to returning to Belgium for the purpose of attending a court hearing. She wishes to be accompanied by her mother. She objects to returning to Belgium if required to live there with the petitioner. She shows marked levels of immaturity. The views expressed by her have been influenced by the respondent. The petitioner further explains and avers that following her return from a holiday in Scotland with the respondent in August 2010 ER arranged to stay overnight with a friend. She returned home unexpectedly. She was unable to gain entry to the petitioner's home. She called the police, on the advice of the respondent. Following investigation, including police interview, no action was taken against the petitioner. The petitioner also avers that he, the petitioner, is involved in a relationship with AK, whom he intends marrying. ER has met AK and her children. They have a good relationship. In or about January 2011 ER told AK that the respondent telephoned her and told her that she had been beaten by her boyfriend the night before. She said that her mum told her that her boyfriend had beaten her and had accused her of stealing money from him. ER said that her mum had been drinking when she telephoned her and that she told ER that she was going to commit suicide because no one loved her and no one wanted her. She has told her paternal grandmother that the respondent and her family and partner fight and that the respondent drinks. She told the respondent at Christmas 2010 that her paternal grandmother was ill and in hospital. Her grandmother was not, in fact, unwell.

[18] ER is of tender years. She has special needs. She is visually impaired. According to the petitioner, she is not of sufficient age or degree of maturity to express a view on matters affecting the arrangements for her care. It is admitted that ER suffers from dyspraxia.

[19] The United Kingdom and Belgium are signatories of the Hague Convention. The Hague Convention has the force of law within the United Kingdom by virtue of section 1(2) of the Child Abduction and Custody Act 1985. The retention of the child in Scotland after 26 February 2011 was a breach of the petitioner's custody rights. It is wrongful in terms of Article 3 of the Hague Convention (and that is accepted by the respondent). The central requesting authority for Belgium has applied to the UK authorities for the return of the child to Belgium in terms of the Convention. The petitioner seeks the assistance of the Court in having the child returned there. The petitioner seeks an order for the return of the child in terms of Article 12 of the Hague Convention.

[20] The petitioner's application is presented in terms of the Child Abduction and Custody Act 1985 and the Rules of the Court of Session.

[21] The petitioner asked the court to order the respondent to return to Belgium in terms of the Child Abduction and Custody Act 1985, within seven days (or such other period as the Court shall determine) of the said order. He also seeks, inter alia, warrant to Messengers at Arms to search for and take possession of the said child and to enter upon such premises as they have reasonable cause to believe the said child to be situated and to take possession of the said child - and an order in relation to the surrender by the respondent of any passport held by her, issued to or containing particulars of ER.

The Respondent's position

[22] The Respondent's position, as outlined in her Answers, was as follows:

[23] In relation to events in 2009, the respondent explains that she received a letter from the petitioner's solicitor requesting the child's return; that the child then wished to return to Belgium; and that the respondent voluntarily facilitated her return at that time. The petitioner is a print finisher by trade. The parties moved to Belgium in August 2004 to allow him to take up a post there with the European Economic and Social Committee. They had formerly lived throughout their marriage in Motherwell. [24] The respondent avers that the petitioner was violent to her throughout the parties' marriage. She also avers that he often smacked the child. In July 2009 the respondent decided to leave the petitioner. She pretended that she was returning with the child to Scotland for a holiday because she was afraid of the petitioner's reaction had she told him that she was leaving him.

[25] The order of the Court of First Instance of Brussels in action no. 2009/1167/C is referred to for its whole terms. It is admitted, inter alia, that the petitioner has custody rights in respect of the child in terms o the law of Belgium and that he was exercising those rights when the child was retained in Scotland.

[26] The respondent explains that the parties were divorced by order of the Belgian court on 22 October 2010. They agreed that, following their divorce, the child would reside with the petitioner in Belgium and that she would have residential contact with the respondent in Scotland during her school holidays. Prior to her visit to the respondent in February 2011 the child attended for contact with the respondent in Scotland for one week in October 2009; for two weeks over Christmas and New Year 2009/10; for one week on February 2010; for one week at Easter 2010; for three weeks in the summer of 2010; and for one week in October 2010. On each occasion the child was happy to return to the petitioner and did so without incident.

[27] The respondent further explains and avers that the child objects to being returned to Belgium for the purpose of allowing the Courts in Belgium to decide issues as to her welfare. She is now aged 11 years 5 months. The respondent considers that she is of an age and degree of maturity which would render it appropriate for the court to take account of her views. On 20 February 2011 the child told the respondent, the respondent's father, and the respondent's partner that she did not want to go back to Belgium because she did not want to live with her father. She claimed that she had been smacked and slapped about the face and legs by the petitioner. She repeated her refusal to return to Belgium to a social worker on 23 February 2011. On 25 February 2011 the child telephoned the petitioner to insist that she did not wish to return to Belgium. On 26 February 2011 she refused point blank to go to Edinburgh airport to return to Belgium. She has consistently maintained her refusal to return to Belgium since then. Despite being encouraged to do so she has also refused to speak to her father on the telephone.

[28] The respondent also contended that the Court should not order the return of the child to Belgium since there is a grave risk that her return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. In particular, it was said that the child is often left to fend for herself while the petitioner spends his time drinking. In October 2010 (following her residential contact with the respondent in Scotland) the child telephoned the respondent in the evening to say that her father was drunk and could not be roused. Because of the distance between them, the respondent was unable to provide practical assistance. The child was frightened and telephoned the police. The police attended. The police officer involved subsequently telephoned the respondent and advised her that the petitioner was indeed drunk and that arrangements had been made for the child to stay with friends that night. The petitioner was arrested as a result of the incident. The child was returned to his care the following day. Thereafter the child began to telephone the respondent three or four times a night for reassurance. She continued to do so throughout the period until 18 February 2011. In February 2011 the child told the respondent that her father had smacked and slapped her and that she had often been left to fend for herself. She told the respondent's partner and father that she had attempted suicide in January 2011 because of her unhappiness at the petitioner's behaviour toward her. She has previously experienced suicidal thoughts on being separated from the respondent. In the event of the petition being granted the child is fearful of the petitioner's reaction in light of the fact that she has expressed strongly negative views about him. She would require significant support and reassurance if she is not to be exposed to psychological harm. The Respondent would be unable to return with the child to Belgium. In particular, the Respondent has no savings. She has no income (except state benefits). She is supported by her partner with whom she lives in his local authority tenancy. She has no place to stay in Belgium (either on her own or with the child). She could not afford to rent accommodation there. She has no funds with which to litigate an action in Belgium as to the child's welfare. In the foregoing circumstances, the Court should exercise its discretion to refuse to return the child to Belgium.

[29] ER has received education help at school. She suffers from dyspraxia for which she has received counselling in Belgium. She is short sighted. She wears glasses which wholly correct her short-sightedness. She has had special help at school in relation to reading and maths. Her academic difficulties do not affect her ability to express herself. She is of sufficient maturity to render it appropriate for the court to have regard to her objection to return to Belgium - so contends the respondent.

[30] Finally, the respondent avers (1) that there is a grave risk that the child would be exposed to physical or psychological harm or that she would otherwise be exposed to an intolerable situation in the event of a return to Belgium, and (2) that the child objects to returning to Belgium and has attained an age and degree of maturity at which it would be appropriate to give effect to her views.

[31] In the result, Mr Hayhow invited me to sustain both (or either) the pleas-in-law for the respondent which were as follows:-

"1. The child objecting to return and having attained an age and degree of maturity at which it is appropriate for the Court to take account of her views, the order sought should be refused.

2. There being a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in the event that an order for her return were made, the court should refuse to make such an order."

The Documentary Productions

[32] As both parties are familiar with the documents produced, I do not propose to rehearse their contents.

[33] However, for completeness, it might be helpful to identify them.

[34] I was provided with the following Productions for the petitioners:-

6/1 Certified Copy Birth Certificate of JS.

6/2 Marriage Certificate.

6/3 Birth Certificate of ER.

6/4 Document from Disclosure Scotland on DR.

6/5 Letter from the International School of Brussels dated 4 March 2011.

6/6 Certified Copy Birth Certificate of DR.

6/7 Photographs of ER.

6/8 Affidavit of DR.

6/9 Letter from Van Alsenoy & Partners dated 31 March 2011.

6/10 Tribunal De Première Instance De Bruxelles Order dated 28 August 2009.

6/11 English Translation of the Court of First Instance of Brussels Order dated 28 August 2009.

6/12 Handwritten request for return dated 1 March 2011.

6/13 Application for return under the Hague Convention.

6/14 Application for return in English.

6/15 Composition De Manage dated 10 March 2011.

6/16 Household Composition translated to English.

6/17 Written record of interview of DR dated 3 November 2010 in French.

6/18 Written record of interview of DR dated 3 November 2010 in English.

6/19 Letter from the European School of Brussels dated 1 September 2008.

6/20 Psychological Report dated 22 May 2008.

6/21 Individual Learning Profile dated 27 January 2010.

6/22 International School of Brussels Progress Report for the school year 2009-2010 dated June 2010.

6/23 International School of Brussels Progress Report for the school year 2010-2011 dated December 2010.

6/24 Letter from the University Saint-Luc dated 10 April 2009.

6/25 Letter from the St Luc University Clinics dated 10 April 2008 in English.

6/26 Principal letter from Van Alsenoy & Partners dated 31 March 2011.

6/27 Principal Affidavit of DR dated 4 April 2011.

6/28 Supplementary Affidavit of DR dated 3 May 2011.

6/29 Affidavit of Irene Chapman dated 3 May 2011.

6/30 Affidavit of AR dated 3 May 2011.

6/31 Affidavit of AK dated 3 May 2011.

6/32 Psychological Report on ER by Professor Thomas AWN MacKay dated 28 April 2011.

6/33 Letter from Katleen Avermaete dated 4 May 2011.

6/34 Principal Affidavit by AR.

6/35 Principal Affidavit by AK.

6/36 Additional information re Belgian proceedings (lodged at the bar on 6 May 2011).

[35] I was also provided with the following Productions for the respondent:-

7/1 Copy Affidavit of JS dated 3 May 2011.

7/2 Copy Affidavit of RJ dated 3 May 2011.

7/3 Copy Affidavit of TS dated 3 May 2011.

7/4 Affidavit of VW dated 2 May 2011.

7/5 Clydesdale Specialist Support Services Report on Assessment of Learning Needs of ER dated March 2011.

7/6 Carstairs Primary School Pupil Interim Report on ER.

7/7 Psychological Report on ER by Professor Thomas AWN MacKay dated 28 April 2011.

7/8 Affidavit of SB dated 4 May 2011.

7/9 Affidavit of VW dated 4 May 2011.

7/10 Principal Affidavit of JS dated 3 May 2011.

7/11 Principal Affidavit of RJ dated 3 May 2011.

7/12 Principal Affidavit of TS dated 3 May 2011.

The Convention

[36] At the outset, it might be helpful to set out the two main terms of The Convention on the Civil Aspects of International Child Abduction - which is incorporated in the Child Abduction Act 1985 (c.60|), Schedule 1.

[37] Article 12 of the Convention provides inter alia that:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ..."

[38] Article 13 of the Convention provides that:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or,

(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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

The cases referred to by counsel

[39] For ease of reference, I can set out the main authorities referred to as follows.

[40] In Friedrich v Friedrich 1996 FED App. 0085P (6^th Cir.), Boggs CJ, who delivered the decision of the United States Court of Appeals for the Sixth Circuit, said (in Chapter III):

"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 in only 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."

[41] That is a helpful introduction to what amounts to a grave risk of harm. It was not in dispute.

[42] In M Petitioner2005 SLT 2, Lady Smith said (at paragraph [38] on pages 11 and 12):

"Counsel for the petitioner sought to persuade me that I should follow the approach to the interpretation of Article 13 set out in W v W (W v W 2004 SC 63) but given the weight of authority to the contrary effect, I do not consider that it would be appropriate to do so. Rather, in considering the facts of this case, I propose to ask:

1. Does S object to being returned to Ireland?

2. Is S of an age and maturity at which it is appropriate to take account of his views?

3. If the answers to 1 and 2 are in the affirmative, whether I should exercise the discretion available to me and refuse to order his return? This involves considering questions of comity, convenience and the general principle that it is in the best interests of a child that his welfare be determined by the court of his habitual residence. A review of the authorities to which I have referred, other than W v W, indicates that this also involves me considering why, if he does, S objects, the strength of any such objection, whether any objection is independent of the views of his mother, whether he appreciates that the purpose of the order for return to which he objects would be to enable the court in Ireland to decide on his future, and his welfare in the immediate future."

[43] Parties were agreed that Lady Smith's approach was the correct one.

[44] In M Petitioner 2007 SLT 433, Lord Malcolm said (on pages 436 and 437 at paragraphs [10] and [11]):

"[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. Counsel for EM 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 16 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] ... 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, 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."

[45] I agree with Lord Malcolm. I also recognise that the circumstances of Lord Malcolm's case were somewhat different from the present one.

[46] In D v D 2002 SC 33, Lord Coulsfield who delivered the opinion of the court (Extra Division) said inter alia (at paragraph [8] on page 37):

"It was, however, submitted on behalf of the respondent that the Lord Ordinary was not entitled to proceed in this way, and that where there were contradictions between Affidavits, and no other evidence to support conclusion one way or another, no conclusion could be drawn. That submission was supported by reference to Re AF (A minor), and seems to us to be sound. "

[47] I accept that there are situations, particularly when considering contradictory written materials, when the court may not be able to draw any meaningful conclusions. In that event, much may depend on where the onus lies.

[48] In C v C (Abduction: Rights of Custody) [1989] 1 WLR 654 (Court of Appeal), Butler-Sloss LJ said (at pages 650E to 660A) stressed the importance of the undertaking that had been offered by the father in that case. Mr Hayhow pointed out that DR, the petitioner in this case, had not offered any such undertakings. Under reference to the same case Ms Dowdalls for the petitioner pointed out that Butler-Sloss LJ also said (at page 661 B-F):

"The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. 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. As Balcombe L.J. said in In re E. (A Minor) (Abduction) [1989] 1 F.L.R 135, 142:

"the whole purpose of this Convention is ... to ensure that parties do not gain adventitious 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.""

[49] I agree with that approach to the Convention but the dicta referred to in C v C are not necessarily decisive in the present case. I have to bear in mind the particular facts and circumstances of the case before me - and they differ from C v C.

[50] In McCarthy v McCarthy 1994 SLT 743, Lord Prosser when ordering the return of the children said (at pages 746L, 747B and 747H-L):

"In proceedings of the present kind, where return to habitual residence is sought in relation to abducted children, I would be very reluctant indeed to embark upon an overall review of the parties' marriage, which if necessary at all, is a matter for the courts of habitual residence. ... But upon the evidence which is before me, taken as a whole, I am not persuaded that the petitioner's physical condition, or his psychological state, or the combination of the two makes him nearly as unpredictable as the respondent would suggest. ... I see no reason to think that the respondent's worries are anything other than sincere. If I were considering the general question of the best interests of the children, it may well be that the worrying aspects of living with their father, when set against an assessment of life in Scotland with their mother, would result in custody going to the respondent. But these are matters for the Irish courts, and not my present concern. The considerations set out in Article 13, as a basis for not enforcing return in terms of Article 12, are described in very demanding language; there must be not merely a risk, but a grave risk of very serious consequences of return. One is concerned with exposure to harm as a consequence of return, and not an exposure to harm which might emerge at a future time, if after return an unsatisfactory situation is allowed to persist without alteration. There will of course be immediate problems, including for example the quite specific problem that the daughter of the marriage is herself a diabetic, and would require medication. But in assessing the consequences of return, and whether there is a grave risk of the serious consequences described, I do not feel entitled, far less obliged, to assume that things will go from bad to worse, or be left unaltered over substantial periods of time. It appears to me that I am concerned, when judging the consequences of return, with the situation which follows upon return, viewed over a relatively short period. Upon that basis, I see no real likelihood that the situation will be one which could be called intolerable, and certainly no grave risk of such a situation. I also see no real risk of the children being exposed to psychological or physical harm and certainly no "grave" risk that returning them to their home to be with their father, even without their mother, would expose them to such harm."

[51] I agree with that approach. I require to recognise and respect the role of the Belgian Court in the present case.

[52] In Q Petitioner 2001 SLT 243, dealing with a different factual situation, Lady Paton said (at paragraph [63] on pages 249-250):

"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. ...

(3) Prima facie, one Hague Convention country court can assume that another Hague Convention country court will be able and willing to provide adequate protection, whether interim or final.

(4) In normal course therefore, there is no reason to assume that the courts of the other Hague Convention country will not have either the ability or the willingness to provide adequate protection. Indeed so to assume would be "presumptuous and offensive": cf Cooper v Casey, quoting from the case of Murray.

(5) Accordingly, a court in one Hague Convention country can return the child who has made allegations of sexual abuse against the custodial parent to the courts in another Hague Convention country (the country of the alleged abuser), assuming that latter courts will provide adequate protection at all stages.

(6) Thus at the time of the child's return from one Hague Convention country to another Hague Convention country, there is no risk to the child, because it would be inconceivable, or alternatively "presumptuous and offensive" (Cooper v Casey, citing the case of Murray) to suggest that the other country's courts might fail to provide adequate protection at any stage, thus possibly allowing the child to be left alone in the company of the alleged abuser."

[53] Following Lady Paton's approach, I am not prepared to assume that the courts of the other Hague Convention country (Belgium) will not have either the ability or the willingness to provide adequate protection.

[54] In In re S (A Minor) (Abduction: Custody Rights) [1993] Fam.242 (Court of Appeal), Balcombe LJ said (at page 251B-C and pages 251H-252B):

"These cases under the Hague Convention come before the very experienced judges of the Family Division, and they can be relied on, in those cases where it may be necessary to ascertain these facts, to devise an appropriate procedure, always bearing in mind that the Hague Convention is primarily designed to a secure a speedy return of the child to the Country from which it has been abducted. It will usually be necessary for the judge to find out why the child objects to being returned. If the only person is because it wants to remain with the abducting parent, who is also asserting that he or she is unwilling to return, then this will be a highly relevant factor when the judge comes to consider the exercise of discretion. ... The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the content of the approach of the Hague Convention: see In re A. (Minors) (Abduction: Custody Rights) [1992] Fam. 106, 122E per Lord Donaldson of Lymington M.R. ... Thus, if the court should come to the conclusion that the child's views have been influenced by some other person, for example the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention."

[55] In the whole circumstances, and for the reasons outlined below, I am not satisfied that is one of those "exceptional cases" where the court should refuse to order an immediate return.

[56] Finally, in I Petitioner 2004 SLT 972, Lord Menzies said (at paragraph [40] on page 981):

"I understand that a decision to order the return of the children to Cyprus may result in some emotional upset for each child. However, for the reasons which I have been discussing I do not consider that it is appropriate to take account of K's views. In assessing the strength and validity of those views, I regard it as important that K has not expressed an objection to returning to Cyprus temporarily, rather than permanently. I also consider it important that she is unaware that she and T have been retained in Scotland in breach of a Cyprus court order, and that she does not understand that the purpose of a return to Cyprus would be to enable the Cyprus court to determine where she should live. I do not consider that the views which she has expressed can be regarded as independent of the influence of her mother. The fact that she likes being in Scotland and finds it more interesting than Cyprus, and the fact that her father may be stricter than her mother and give her less pocket money, are not in my view relevant. The strength and validity of K's views are not such as to outweigh the clear ethos of the Convention. They do not in my opinion meet the high test required for an exception under Article 13 to the general rule in Article 12."

[57] The facts of the present case are somewhat different but, in my opinion, the views of ER are not such as to outweigh what Lord Menzies correctly described as the "clear ethos of the Convention". They do not meet the "high test required for an exception under Article 13 to the general rule in Article 12".

[58] I would outline my reasons, in a little more detail, as follows.

Discussion

[59] I have set out Articles 12 and 13 of the Convention (above).

[60] I have also outlined the various cases which were referred to (above).

[61] I have given anxious consideration to the various documents produced.

[62] I have had regard to all of the submissions of both counsel.

[63] In the result, in my opinion, Ms Dowdall's submissions on behalf of the petitioner fall to be preferred.

[64] It is a matter of agreement between the parties that the retention of ER in Scotland is wrongfully within the meaning of Article 12.

[65] Article 12 provides that I "shall order the return of the child forthwith" to Belgium unless the requirements of Article 13 are met.

[66] Effectively, the onus is on the respondent.

[67] Firstly, the respondent seeks to establish that there is a grave risk that ER's return would expose ER to physical or psychological harm or otherwise place her in an intolerable situation.

[68] Secondly, the respondent seeks a finding that ER objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views.

[69] It is accepted that, even if those matters are established, I still have a discretion under Article 13 to order the return.

[70] The respondent's concerns for ER's long-term welfare are no doubt genuinely felt but that is not the issue before me in these proceedings.

[71] The underlying policy of the Convention is clear from the terms of Article 12 - which ends with the words that this court "shall order the return of the child forthwith".

[72] The question is whether, on the information before me, I am satisfied that an exception has been made out under Article 13.

[73] On the information before me, I am not so satisfied.

[74] I have borne in mind the submissions of Mr Hayhow, and the various affidavits and the other documents lodged on behalf of the respondent (Nos. 7/1 to 7/9 of Process and the letter No 10 of Process), but in my opinion the circumstances of this particular case point in favour of ER being returned to Belgium.

[75] Firstly, ER has an admitted tendency to tell fabricated stories. ER is a child "that cannot be relied upon" (to use Mr Hayhow's words). There has been a "history of telling fibs". I cannot overlook that. It has an important bearing on both of the respondent's submissions - in relation to (1) the alleged objection to return and (2) the alleged grave risk of harm. ER's account of events is, at least to some extent, unreliable and should be treated with caution. For example, although ER has made allegations in the past to the effect that the petitioner smacked and hit her since 2009, Mr Hayhow expressly departed from those allegations and placed no reliance upon them. Other examples can be found in the documents provided such as the affidavit of Mrs Irene Chapman No 6/29 of Process and the Psychological Report by Professor Thomas MacKay No 7/7 of Process.

[76] Secondly, although ER may have expressed a wish to remain with her mother, I am not satisfied that ER "objects to being returned" to Belgium within the meaning of Article 13. ER's views have developed in discussions with adults, such as the respondent. Mr Hayhow accepted that ER has been influenced, to some extent, by discussions with her mother.

[77] Thirdly, although ER was born on 29 November 1999 and has attained an age of 11 years 5 months in chronological terms, she shows "marked levels of immaturity which can be clearly ascertained from many sources of evidence" (according to Professor Thomas MacKay in his Psychological Report No 7/7 of Process). I have had regard to ER's views, as explained to me, but I am not satisfied that they are sufficient to determine either of the Article 13 questions in the respondent's favour.

[78] Fourthly, although any suggestion of suicide creates a most anxious situation, I am not satisfied that there is a "grave risk" that ER's return to Belgium would expose her to physical or psychological harm or otherwise place her in an intolerable situation within the meaning of Article 13. In relation to the allegations about threatened suicide I also have to bear in mind that ER has a tendency to tell lies - as mentioned above.

[79] Fifthly, in relation to the respondent's allegation based on the Belgian police attending the petitioner's house in 2010, I was not satisfied that I could rely upon the hearsay accounts from Inspector Roobaert - which were also unfortunately vague. In any event, I cannot discount the petitioner's version of events which puts a different complexion on matters. (See the petitioner's affidavit No 6/28 of Process, at paragraph 6, and the written record of interview No 6/18 of Process).

[80] In short, I have had regard to everything that has been said by Mr Hayhow but I am not satisfied the respondent has made out a case based on Article 13.

[81] In any event, in the exercise of my discretion, I shall decline to make the orders sought by the respondent. I do so essentially for the reasons outlined by the petitioner.

[82] There will always be uncertainties as to what the future may or may not hold for any vulnerable child but I accept the petitioner's submission that there are mechanisms available, in this particular case, which are capable of safeguarding ER's welfare in Belgium. Amongst other things:

(i) The petitioner has, until the present unlawful retention, managed to care for ER reasonably well in Belgium with the consent of the respondent.

(ii) Mrs Irene Chapman, a trained psychotherapist, provides some re-assurance. She has an established relationship with ER and has been providing ER with counselling and support in Belgium through the International School of Brussels. Mrs Chapman's affidavit is No 6/29 of Process. She has also spoken to Professor Thomas MacKay and can (and should) be provided with a copy of his Psychological Report which is No 7/7 of Process.

(iii) There are welfare authorities in Belgium. Indeed, the Scottish Social Worker Steven Brown has indicated that, should ER be returned to her father's care, he will be sharing his concerns with the relevant welfare authorities in Belgium. Mr Brown's affidavit is No 7/8 of Process. Mr Brown has been a social worker for a relatively short period - over three years. He also seems unaware of ER's admitted tendency to tell fabricated stories and he has relied upon allegations by ER which Mr Hayhow has expressly departed from.

(iv) The Belgian police also seem to be in a position to assist if necessary. It seems that the Belgian police responded fairly quickly to the call and made arrangements for ER in 2010.

(v) Finally, the Belgian Court, the Court of First Instance of Brussels, has already pronounced an order in relation to ER and I am informed that a hearing is due to take place later this month on 31 May 2011. The respondent can make representations to the Belgian Court if so advised.

[83] I should allow the Belgian court to deal with matters.

Decision

[84] In the whole circumstances, and for the reasons outlined above, I am not satisfied that this is such an exceptional case that I can, or should, refuse the order sought by the petitioner. In any event, I am not satisfied that I should exercise my discretion in the respondent's favour. In the result, I propose to repel both pleas-in-law for the respondent and make an order for ER's return to Belgium. In essence, I agree with the main arguments advanced on behalf of the petitioner.

[85] As requested by both parties, having decided the main question of principle, I shall appoint the cause to be heard "By Order" as soon as possible. That will enable parties to consider the question of the timing of ER's return to Belgium and also the practical arrangements for ER's return and for her support - bearing in mind that there is due to be a hearing in the Belgian Court on 31 May 2011.

[86] As mentioned at the outset, I hope both parties co-operate with a view to supporting ER's return.

[87] Meantime, I shall reserve the question of expenses.