Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 79
P177/14	OPINION OF LORD DOHERTY in the Petition of P H (AP) Petitioner; for An order for the return of a child under the Child Abduction and Custody Act 1985 ________________

Petitioner: McAlpine; Morisons, Solicitors

Respondent: Malcolm; Balfour and Manson LLP, Solicitors

30 April 2014

Introduction

[1] The petitioner and the respondent were married in 1993. They are both Scots. They set up home in Aberdeenshire. They had two children, a son J (now aged 18) and a daughter ("K") (now aged 13 years and 9 months). The petitioner and respondent separated on 1 November 2007. The separation was acrimonious. Initially both children continued to live with the petitioner. Since about 2009 the petitioner's son has lived with the respondent and there has been minimal contact between mother and son. The respondent continued to exercise substantial residential contact to K. Periods of contact were arranged informally. Up until the end of Primary 6 K continued to attend the same primary school she had always attended. However, the petitioner moved home to a different area of Aberdeenshire in about 2011 and K moved school for Primary 7. The parties were divorced in 2010. Both have since remarried other partners. In March 2012 the petitioner, her husband ("H") and K moved to Norway in connection with H's work. There was some dispute between the parties as to the notice which had been given by the petitioner to the respondent of the move to Norway, but on 7 November 2012 the respondent signed a declaration consenting to K's residence there (see 6/4 and 6/5 of process). K attended a British School near her home in Norway. Residential contact continued during school holidays. On 1 October 2013 K came to the respondent's home on a contact visit. She was supposed to return to Norway on 12 October 2013. She did not return. Since then K has appeared to be firm in her resolve not to return to Norway. She has lived with the respondent and her brother and has attended the local High School.

[2] The petitioner travelled to Scotland to bring K back. She remained here for about three weeks in order to seek to achieve that. She involved the police, the social work department, and the press. She attended at K's school and home, and sought to speak to her on, and in the vicinity of, the school bus. She attended at the home of K's paternal grandparents. She distributed leaflets outside the places of work of the respondent and his wife. She spoke in person with K on a few occasions, but, understandably, a good deal of what she said to her appears to have been emotive or distraught. She has not seen K since about the beginning of November 2013. There has been some measure of telephone, Facebook and email contact between them since, but this does not appear to have been extensive. There has also been some communication by way of letters sent by the petitioner to K.

[3] The petition was presented on 19 February 2014. A first hearing was held on 6 March 2014. At that time, on the joint motion of the parties, the court appointed Professor James R G Furnell, Consultant Psychologist, to prepare a report for the assistance of the court. His remit was consideration of the following questions:

"1. Does the child object to being returned to Norway?

2. Is the child of an age and maturity which is appropriate to take account of her view?

3. What are the child's reasons for any objection to return to Norway?

4. To what extent are those views rooted in reality?

5. To what extent, if any, have those views been shaped by undue parental pressure either direct or indirect?"

[4] The matter called before me on 10 April 2014 for a second hearing. In addition to Professor Furnell's report dated 26 March 2014 (no. 12 of process) parties had lodged affidavits (of the parties, H, J, her paternal grandfather, her maternal grandfather, and two maternal aunts) and productions. The productions included a school report from K's current school and one from her school in Norway; email correspondence; Facebook messages; and certain correspondence relating to child support payments. No oral evidence was led. The parties lodged a "Joint Note of Agreed and Disputed Issues" in the following terms:

"Following their divorce both parties retained parental rights and responsibilities in relation to the child K.

Immediately prior to K returning to Scotland in October 2013 the Petitioner had and was exercising and enjoying rights of custody in Norway in terms of article 3 of the Convention on the Civil Aspects of International Child Abduction 1980 [the 'Hague Convention'].

Whilst in terms of the pleadings and affidavits to be lodged there is a factual dispute over the manner in which the move to Norway took place, it is not disputed that the Respondent subsequently gave formal consent to K residing there with the Petitioner, and as a consequence K's habitual residence became Norway in 2012.

It is agreed that the child K remaining in Scotland amounts to a 'wrongful retention' in terms of article 3 of the Hague Convention.

It is agreed that the child K has attained an age and degree of maturity at which it is appropriate to take account of her views.

The disputed issue is whether the court should exercise its discretion in terms of article 13 of the Hague Convention, and refuse to order return of the child K where she objects to being returned."

Articles 3, 12 and 13 of the Hague Convention

[5] By virtue of section 1 of, and Schedule 1 to, the Child Abduction and Custody Act 1985 certain provisions of the Hague Convention (including articles 3, 12 and 13) have the force of law in the United Kingdom. Article 3 provides:

"The removal or retention of a child is to be considered wrongful where - (a) it is in breach of rights of custody attributed to a person ...under the law of the State in which the child was habitually resident immediately before the retention; and (b) at the time of removal or exercise those rights were actually exercised ..."

Article 12 provides:

"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 since the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith ..."

Article 13 provides:

"...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."

Professor Furnell's report

[6] Professor Furnell interviewed K on her own in his consulting room in Aberdeen on two occasions for a total period of 3 hours. He also interviewed the petitioner (by telephone) and the respondent (in person). He concluded that K "objects most strongly, and unambiguously, to being returned to Norway" and that she "is of an age and degree of maturity where her views ought to be given some weight". He observed that "she presents as someone of more insight and maturity than might be implied from her chronological age". He recorded her reasons for not wishing to return as including:

"1) A sense that, by living in Norway (or elsewhere) she has been removed from a wide network or relationships both domestic and in the wider community which includes both close and extended paternal and maternal families, peers, and friends of long standing and more recent acquaintance. Further, she lost opportunities for involvement in a variety of activities which involved her with family, friends, and in the local community, with which she appears to identify strongly.

2) That she feels a particular closeness to her older brother J and wishes to maintain a relationship with him.

3) That she has experienced three changes of school in approximately 3 years, and that at the time of her refusal to return to Norway in October 2013 was likely to be moved a fourth time to a school in Angola. Further, even if the prospect of a move to Angola no longer applies, she thinks it likely that, should she return to her mother's care, she will be rapidly moved to London to, yet again, another school. K indicates that she is now settled and reintegrated into her secondary school ... within the Scottish education system, and she wishes the consistency and stability to complete this phase of her education in that setting.

4) If required to return to Norway, and she remained at the same school in the same community, the possibility of bullying could continue.

5) That K likes living in her paternal home in [ ..], and is 'comfortable' there. In contrast, she feels that her domestic circumstances and relationship with her mother are more difficult.

Professor Furnell considered K's views to be rooted in reality. He observed:

"Much of the above appears to reflect the reality of what is available to K in Scotland, in terms of families, people, relationships and activities with which she is connected. By definition these features are not available elsewhere, for example in Norway.

It appears that K places great weight on her relationship with her brother J, and there is nothing that has occurred during the above investigations that would form any contradiction.

The history of K's moves of home and schools are a matter of record, and K is articulate in her own views about the inherent instability for her and the possible detrimental effects on her education and prospects. In addition, with regard to the prospect of a further move, which appears to have been potentially imminent at about the time that she finally refused to return to Norway in October 2013, it appears factual that she had already had suitable inoculations for travel. Further, if H is currently working in London, the implication is that K might, indeed, be required to have another change of school to that setting. Thus, to state the obvious, her apprehension appears to be grounded in reality indeed.

In terms of potential future bullying in Norway, it appears to be the position of K's mother that this had been resolved. Clearly at this distance one is not in a position to comment. However, it would appear that there might be a potential for future re-emergence if circumstances allowed.

Finally, is the matter of the nature of the relationship currently and in the recent past, between K and her mother. Clearly on that count there are at least two different perceptions, and one would be hesitant to comment given the restrictive circumstances of the current report. It does, however, appear that K finds this difficult at present."

As to whether K's views had been shaped by undue parental pressure, Professor Furnell found:

"From all of the above, there is no obvious indication of influence on K. I am aware that it is the contention of [the petitioner] that [the respondent] has caused K to have a negative view about her mother, and possibly living in Norway with her. It may be that some of [the petitioner's] alleged behaviour has given rise to a general climate of disapproval of her in K's paternal household. One would, however, comment that, as noted above, K appears to be an independent minded young person of considerable determination. I think it likely that it would be most difficult, particularly given her age and general intellectual capacity, to influence her against her own ideas and standards. In addition, K appears happy and settled in her circumstances at [her home in Scotland], and it is unlikely that she would be so if she were genuinely conflicted in her views between the view of her mother and life in Norway on the one hand, and any received ideas or views, let alone pressure, from her father. K shows no signs of any such conflict. She seems quite consistent in her views, and is able to discuss and debate her reasons for her views in a way that makes them appear genuinely held. Her view appears to have a logical and sustainable basis. Hence, one can only conclude that it is unlikely that her views have been shaped by undue parental pressure to any significant extent. One would indicate to the Court that K appears to be very much, in the vernacular, 'her own person'."

Submissions for the respondent

[7] Miss Malcolm recognised that in the circumstances the onus was on her to satisfy the court that an order for return should not be made. It was plain from Professor Furnell's report and from the affidavits of the respondent, J, and K's paternal grandfather that K wished to live in Scotland with her father and brother and near her extended family. It was clear she was happy at having resumed her schooling and friendships in Scotland and at having formed new friendships. She had settled and was doing well. She ought not to be forced to give this up for a return to Norway, nor should she be required to face the uncertainty of potential moves from Norway with the petitioner and H in the future. That was not an unreasonable apprehension given that H had now obtained employment in London. K had returned to the place with which she had most connection. She resided in the former matrimonial home with the respondent and J. Before the move to Norway she had lived her whole life in Aberdeenshire. She had only lived in Norway for 18 months and during that time she had retained her strong connection with Scotland. Miss Malcolm submitted that this was an exceptional case. The court should be satisfied that K objects to being returned; that the objection represents her own independent view and is not a view which had been unduly influenced by the respondent or others; that it is a strongly and rationally held view; and that in the whole circumstances (including her age, her intelligence and maturity, and bearing in mind Professor Furnell's finding that K presented as having more insight and maturity than might be implied from her chronological age) the court should give great weight to K's objection and refuse to order her return to Norway. This was an example of a case where a child ought not to be made to suffer for the sake of the general policy considerations of the Convention. Reference was made to Urness v Minto 1994 SC 249 at pp 265-266; Singh v Singh 1998 SC 68 at pp 71‑72; M Petitioner 2005 SLT 2 at pp 8-11; In re M (Abduction: Rights of Custody) [2008] 1 AC 1288 per Baroness Hale at paras 35, 43, 46; and HIB [2013] CSOH 187 at paras 18, 20; D v D 2002 SC 33.

Submissions for the petitioner

[8] Mr McAlpine submitted that in the circumstances the court should make an order for K's return. The nature and strength of K's objection were of insufficient weight to justify exception from the general policy and principles of the Convention. In large part K's objection amounted to little more than the expression of a preference that she live in Scotland rather than Norway. The picture she painted of school and life in Norway was not one which gave rise to any real cause for concern. She had school friends there. The language at school was English. The "cyber bullying" problem had been resolved following appropriate intervention by the petitioner, H and the school, and K had not really made much of it when she was interviewed by Professor Furnell. There were no welfare concerns in relation to her care by the petitioner and H. Until October 2013 K had spent her whole life with the petitioner. The petitioner had been K's principal carer since her parents' separation. K got on well with H. It was no coincidence that the timing of the refusal to return had corresponded with the petitioner taking action to enforce payment by the respondent of child support. The respondent had told K that the petitioner would impoverish him. In doing so, and by telling her of the circumstances which led to the parties' separation, he had painted the petitioner in a bad light and turned K against her. Some of K's reasons for not wishing to return were not in fact rooted in reality. While a move to Angola had been considered, it would not take place. H had now taken up a job in London, and the intention was that the family home would remain in Norway and that K should complete her education at the British school she had attended. During her interviews with Professor Furnell K had suggested that living in Norway meant she was "missing out on everything" in Scotland. That was not correct. She had residential contact with the respondent. She was able to see him, J and her relatives regularly. She was also able to keep in contact with them by text, telephone, email and Skype. Her description to Professor Furnell (at p 13 of his report) of how she would react if the court ordered her return was indicative of teenage rebellion against parental authority. It demonstrated a lack of maturity. Further, it was not clear from the report that K understood that the purpose of an order for her return to Norway would be for the Norwegian courts to decide the question of custody. In addition to the authorities mentioned by Miss Malcolm, Mr McAlpine referred to P v S 2002 Fam LR 2; JP v FM [2014] CSIH 19; Marshall v Marshall 1996 SLT 429; and C v C 2008 SCLR 29, 2008 SC 571.

Discussion

[9] It was common ground that K objected to her return to Norway, and that her age and maturity made it appropriate that her views be taken into account. It was also common ground that, the requirements of article 13 being satisfied, the court had a discretion whether to make an order for K's return, and that that discretion was at large: In re M, supra, per Baroness Hale at para 43. The disputed issue was whether the court should exercise its discretion to refuse to order return.

[10] Parties were also at one that where there were contradictions between affidavits, and no other evidence to support a conclusion one way or the other, no conclusion could be drawn by the court (D v D 2002 S.C. 33 at p. 37D). I approach matters on that basis.

[11] At para 46 of In re M, supra, Baroness Hale observed:

"46 In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."

[12] With those considerations in mind I turn first to Professor Furnell's report. He is a psychologist with considerable professional experience of dealing with children. I am not persuaded that I should reject any of his findings. I accept them. In particular I am not persuaded that I am better placed than him to determine whether K has been unduly influenced by the respondent. I accept his conclusion, for the reasons which he gives (at pp 15-16 of no. 12 of process), that it is unlikely that her views have been shaped by undue parental pressure to any significant extent. Some further support for that is provided by the email correspondence between K and the respondent (7/2, 7/6 of process), which tends to suggest that K's wish to live with her father and go to school in Scotland has been a long held one.

[13] What weight should I attach to K's views? She is almost 14 years of age. She is intelligent and independent of mind. She presented to Professor Furnell as someone of more insight and maturity than might be implied from her chronological age. I attach very little weight to the history of cyber bullying at school in Norway. While the risk of repetition cannot be dismissed it was not a matter which loomed large in K's discussions with Professor Furnell. By contrast K is firm and unambiguous in her desire to remain with the respondent and her brother, close to other relatives and friends, and to continue her education in Aberdeenshire. She sees that as being a far better and more stable option for her than a return to Norway. Given her strong links in Aberdeenshire her wishes are understandable. Can it be said nonetheless that they are not grounded in reality? In my view it cannot. While the prospect of a further move from Norway was a live issue in October 2013 and may have contributed to K's refusal to return there, the crux for K is that she wishes to complete her childhood and her education in Scotland, and to be with her father, brother, relatives and friends here. That aspiration cannot be fulfilled by means of residential contact or communication from a distance. Ought little weight to be attached to her views because Professor Furnell did not expressly check that she appreciated that on return to Norway the court there could determine the question of custody? Once again, I think not. Had the petitioner wished Professor Furnell to make specific enquiry in relation to that matter she had the opportunity to raise it with the court at the time the remit to him was formulated. It ill behoves her now to say that the matter is one which ought to have been, but was not, explored. In any event, K's views as to where she wishes to live are so strong, clear and unambiguous that they leave no room for any real doubt that she does indeed object to being returned to Norway even though the court there would be able to adjudicate upon the question of custody.

[14] The factors already discussed all point to it being appropriate to give K's views very considerable weight indeed. Her views also appear to me to coincide to a substantial degree with other considerations which are relevant to her welfare. She appears to be happy with her father and brother. She seems to have settled at her new school where she is making good progress. She has made new friendships and has resumed old ones. She has not seen the petitioner since November 2013 and there has been very little communication between them since then. Ordering her return to Norway, particularly against her will, would be liable to cause her considerable distress and disruption. There are, of course, considerations on the other side of the scale, the most significant of which are that the petitioner has been K's primary carer until the wrongful retention; and the general policy considerations of the Convention to secure swift return of abducted children and to deter abduction. In my opinion, in the particular circumstances of this case, these other considerations do not outweigh the considerations which support refusing an order for K's return. Although at the time of retention K was habitually resident in Norway, the country with which she had - and has - the more significant connection is Scotland. She had lived all but 18 months of her life here. Adopting the language of Baroness Hale (In re M, supra, paras 53, 54), there appear to me to be powerful child-centric considerations against which the policy of the Convention ought to carry little weight. In the whole circumstances I am satisfied that I should refuse the prayer of the petition.

[15] The prospect of the estrangement of any mother and child is a painful one, particularly where, as here, the mother was the primary carer until recently. No judge could fail to be moved at the position in which the petitioner finds herself. In a postscript to his report Professor Furnell respectfully suggested that "whatever the outcome of the present proceedings, steps be taken, under suitable conditions, for the initiation of renewed contact between K and her mother." Like Professor Furnell, it is my earnest hope that all concerned will make best endeavours in early course to facilitate, encourage and nurture appropriate contact between the petitioner and her daughter.

Disposal

[16] I shall sustain the respondent's plea-in-law and refuse the prayer of the petition. I shall reserve meantime all questions of expenses.