Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 26

 

P428/16

OPINION OF LORD PENTLAND

In the Petition of

KS

Petitioner

against

MG

Respondent

Petitioner:  Rattray;  MHD Law LLP

Respondent:  Shewan;  Thorley Stephenson

17 February 2017

Introduction
[1]        In this Petition the father of a 10‑year‑old boy, to whom I shall refer as “P”, seeks an order for return of the child to Poland under and in terms of the Child Abduction and Custody Act 1985.  P was born on 11 October 2006.  He and his parents are Polish citizens.  P currently lives with his mother, the respondent, in Scotland.

[2]        After his birth P lived in Poland with his parents, who were then in a relationship.  They have never been married to one another.  The petitioner and the respondent separated in 2011.  Following the separation, P lived with the respondent in Poland.  The petitioner continued to have regular contact with the child.

[3]        In about September 2012 the respondent moved to Scotland in order to find employment in this country.  P remained in Poland with the petitioner.  At that time the child’s grandmother and great grandmother helped the petitioner to look after the child.

[4]        In about August 2013 the respondent’s mother travelled with the child to Scotland.  The reason for and circumstances surrounding this visit are not agreed in the parties’ pleadings, but it is unnecessary for me to resolve this aspect of the dispute.  This is because following the commencement of proceedings by the petitioner in this court for return of the child, the respondent agreed to return him to Poland and he went back to that country in about December 2013.  The respondent remained in Scotland where she has established a new relationship.  She and her new partner have young twins.

[5]        Following P’s return to Poland, the parties engaged in child welfare proceedings before the District Court in Poznan.  I shall have more to say about these proceedings later.  P lived with the petitioner in Poland until 22 August 2015 when the respondent removed him to Scotland;  he has been in her care in this country since then.  The respondent avers that she decided to take the child to Scotland based on advice from her Polish lawyer that she was entitled to do so under and in terms of an order of the District Court initially made on 31 October 2014 and finally confirmed on 21 July 2015 after an appeal to the Regional Court.  The petitioner disputes this interpretation of the District Court’s ruling.

 

The Present Proceedings
[6]        The present proceedings have a somewhat unfortunate history.  They were commenced in May 2016.  Later that month the court appointed Mr Alan Inglis, advocate, as a child welfare reporter.  Having visited the child, Mr Inglis prepared a report dated 26 May 2016.  He said in his report that he had no doubt that P would be very upset if he was required to return to Poland.  He added that there did not appear to be any reliable information at that time to enable him to evaluate P’s level of maturity.  A second hearing initially took place on 27 June 2016.  At that hearing the court issued a request to the Polish authorities in terms of Article 15 of the Hague Convention for a determination as to whether the removal of the child by the respondent in August 2015 was wrongful.  The second hearing was continued to allow this process to be followed through.  It transpired that there is no mechanism in Poland for such a referral.  Accordingly, the case called again before the Lord Ordinary in July 2016 when parties were allowed a continued second hearing on a date to be afterwards fixed.  Thereafter the respondent’s solicitors withdrew from acting for her.  I understand that this was at least partly because of the appointment of a judicial factor to a firm of solicitors she had instructed at local level.  Legal aid difficulties ensued.

[7]        Following some further procedure, the case came before me in December 2016 when the respondent appeared on her own behalf with the assistance of an interpreter.  It was clear that she could not be expected to conduct the case in person in view of the complexity and technicality of the issues.  She did not have a good understanding of the difficulties which had arisen with her former solicitors and she was unclear about the availability of legal aid.  In the circumstances, I urged her to renew her efforts to obtain legal representation and I asked the clerk of court to assist by contacting the Scottish Legal Aid Board.  The representation and funding problems were resolved over the Christmas and New Year period and on 10 January 2017 the case called before me again.  On that date, I appointed Mr Inglis to provide a second report on the child’s up‑to‑date views on being returned to Poland.   Mr Inglis prepared a further report dated 16 January 2017, having again visited the child.  The case came before me for a substantive second hearing on 2 February 2017, at which both parties were represented by counsel.

The Applicable Law
[8]        Section 1 of the Child Abduction and Custody Act 1985 provides inter alia that the provisions of the Convention on the civil aspects of international child abduction signed at the Hague on 25 October 1980 (“the Hague Convention”) as set out in Schedule 1 to the Act shall have the force of law in the United Kingdom.

[9]        Article 3 of the Hague Convention provides as follows:

“The removal or the retention of a child is to be considered wrongful where -

a)         it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;  and

b)         at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

 

[10]      Article 5 of the Hague Convention provides inter alia that:  “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.

[11]      Article 12 of the Hague Convention provides as follows:

“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.”

 

[12]      Article 13 of the Hague Convention 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.”

 

[13]      Article 11(2) of Brussels II bis (Council Regulation (EC) 2201/2003) provides:

“When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.”

 

The Issues in the Case
[14]      There are two issues in dispute between the parties.  They are:

1.         Whether the removal of P by the respondent from Poland on 22 August 2015 was in breach of the petitioner’s rights of custody; and

2.         If the child’s removal was in breach of the petitioner’s rights of custody, whether the court should refuse to order the return of the child because he objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views.

 

The First Issue
[15]      The first issue turns on the meaning and effect of the order of 31 October 2014 made by the District Court in Poznan.  The respondent accepts that the petitioner has rights of custody within the meaning of the Hague Convention, but argues that the District Court gave her permission to remove the child to live with her in Scotland and that accordingly the petitioner’s rights of custody have not been breached.

[16]      Under Polish family law the Guardianship Court may, where a child’s parents are living apart, entrust the exercise of parental authority to one of the parents.  At the same time the Court may limit the parental authority of the other parent to specific powers and duties in relation to the child.  These powers derive from Article 107 of the Polish Family and Guardianship Code.

[17]      By the first paragraph of its formal ruling issued on 31 October 2014 and finally confirmed on 21 July 2015 after an appeal to the Regional Court, the District Court decided that custody of P was awarded to the respondent.  There was some initial doubt at the hearing before me as to whether the term “custody” was an entirely accurate translation.  Any difficulty was resolved by the lodging of a Joint Minute by which the parties agreed that the terms “custody” and “execution of parental authority” in the District Court Order are interchangeable and have the same meaning under Polish law.

[18]      In the same paragraph of its ruling the District Court restricted the parental authority of the petitioner to the right to participate in decisions regarding the most important matters in P’s life.

[19]      In addition to its formal ruling, the District Court issued detailed written reasons for its decision.  In the legal opinions obtained by the parties from Polish lawyers, consideration was given to the extent to which it is legitimate under Polish law to have regard to the written reasons issued by a court when a question arises as to the meaning and effect of the court’s formal ruling.  In the opinion of 16 September 2016 provided by the expert instructed for the petitioner, Dr Joanna Kosińska‑Wiercińska, the matter was put as follows:

“The written reasons of the Polish court’s order are not a part of the judgment itself and they are not an obligatory element of the decision.  As a consequence they cannot change the meaning of the order as read separately ‑ which means, without the written justification.  In other words, one is not allowed to modify the straightforward meaning of the order by adding new elements to it (or taking away existing elements) derived solely from written reasons of the judgment.  Even if a particular court has failed to formulate its order properly and it does not reflect the judge’s real intentions no one is allowed to subsequently interpret the verdict by adding the meaning that cannot be derived from its contents.”

 

[20]      This question was also considered in the opinion provided by the Polish lawyer instructed on behalf of the respondent, Ms Anna Stokłosa.  Ms Stokłosa referred to two judgments from the Polish Supreme Court in which the relationship between the formal ruling made by a Polish court and the accompanying written reasons is addressed.  In the first of these, on 15 February 2007, the Supreme Court stated, according to Ms Stokłosa’s report, that only the operative part of the judgment is binding; this being based on Article 365.1 of the Polish Civil Code.  However, in some cases, due to the generality of the resolution expressed in the operative part of the judgment, the circumstances defined in the grounds (i.e. the written reasons) may serve to clarify the scope of the binding force of this judgment.  In the second case cited by Ms Stokłosa from the Polish Supreme Court, decided on 15 January 2015, the following was stated:

“In some cases, mainly due to the generality of the settlement contained in the operative part, the facts included in the justification (i.e. the accompanying written reasons) may be useful for clarifying and defining the scope of res judicata as well as the scope of the binding effect of the judgment.”

 

[21]      In the present case neither party suggested that the terms of the District Court’s formal ruling should be contradicted, qualified or modified by reference to the court’s written reasons.  So, the prohibition referred to by Dr Joanna Kosińska‑Wiercińska in the section of her report quoted above is not engaged.  As I understand the position, such an exercise in contradiction or modification would not be permitted under Polish law;  this is hardly surprising.  Having regard to the opinions of the two experts in Polish law, I proceed on the footing that it is the operative part of the court’s judgment (i.e. the formal ruling it has issued) that is legally binding.  However, my understanding of Polish law, again based on the opinions of the two experts, is that it is legitimate to consider the court’s written reasons if such consideration assists in enabling one to understand the judicial reasoning underlying the formal ruling.  In other words, one can properly look at the District Court’s written reasons in the context of the present case so that one can gain an understanding of the reasoning of the court that led it to make the decision recorded and given effect in its formal ruling.  From the perspective of the Scottish court, it is clearly helpful to examine all the material made available by the Polish court in relation to its ruling.  The formal ruling is the binding and operative decision, but the written reasons provide a helpful source of information for the purposes of explaining why the decision was arrived at and what exactly it was intended to mean in practical terms.  Particularly, in the context of a child abduction case, it seems to me that it would be highly artificial and unsatisfactory for this court to ignore the written reasons issued by the Polish court.

[22]      When one has regard to the written reasons issued by the District Court it is, in my opinion, clear that the award of custody (also to be understood as the execution of parental authority) granted in favour of the respondent was made on the basis that P would live with the respondent in Scotland.  The effect of the District Court’s ruling was to authorise the respondent to remove P from Poland in order to live with her in Scotland.  In support of this interpretation of the District Court’s decision I would refer to the statement on page 2 of the written reasons where the court records that the respondent “in actual fact lives in Scotland”.  On page 4 of the written reasons the following is stated:

“In light of the parents’ dispute and the mutually exclusive applications pertaining to the entrusting of the exercising of parental responsibility in relation to the minor (P) it was necessary to assess what would be best for the minor ‑ either the current situation where he was staying with his father or entrusting this responsibility to the mother, who would duly exercise custody in relation to the child and be responsible for him, with the other parent potentially participating in decisions on major matters relating to the child.”

 

[23]      On page 5 of the written reasons the court refers to P having lived in Scotland for four months, including attending school.  The court then continued:

“The above makes it possible to unequivocally state that in Scotland in his mother’s abode, (P) adapted to different circumstances, his needs were secured and met there, irrespective of the problems with adapting that certainly occurred, all the more that (P) did not speak the language and was learning it.

 

[24]      The written reasons of the District Court then continued as follows:

“The parents’ separate living arrangements and the legal division of parental duties between the stakeholders is as follows:

 

the mother ‑ ongoing custody, care, looking after the child, as well as the right to assert claims for maintenance on her son’s behalf;

 

the father ‑ the right to participate in decisions about major matters relating to the person of his daughter (sic), such as choosing his school, all matters associated with the child’s education and medical treatment, having a passport/national identify card issued, changing his abode, changing his surname, the choice of occupation, the organisation of his recreation, extra curricula education.”

 

The reference to a daughter is clearly a clerical error.

[25]      Finally, the District Court in its written reasons included the following passage on page 5:

“… the consequence of entrusting the exercising of responsibility is that the child’s abode is to be the abode in each case from time to time of the parent to whom this responsibility has been entrusted and this is in accordance with Article 26 of the Civil Code”

 

[26]      Article 26 of the Polish Civil Code provides inter alia that the domicile of a child is the domicile of the parent to whom the exercise of parental authority is entrusted.  In the present case, the District Court clearly entrusted parental authority to the respondent.

[27]      In my opinion, it is clear from these excerpts from the written reasons that the central focus of the District Court’s consideration of the case was whether P should live with his mother in Scotland or with his father in Poland.  The decision of the District Court was that P should live with the respondent in Scotland.  The petitioner was to have the right of co‑decision on the important matters identified in the written reasons.  It is notable that these extended to the right to participate in decisions such as changing the child’s abode, but that a right of co‑decision as to choosing the place of the child’s abode was not specified.  In her opinion Ms Stokłosa attaches importance to this distinction.  It seems to me that she was correct to do so.

[28]      This understanding of the meaning and effect of the District Court’s order is confirmed by the subsequent decision of the Regional Court at the appeal stage of the Polish proceedings.  On page 7 of its decision the Regional Court said this:

“In order to assess his reasonable wishes it would thus be sufficient to familiarise oneself with the opinion of the court ‑ appointed expert witness who had talked to the minor, and in the opinion she included his observations both with regard to the possibility of staying with his father in Poland and going to live with his mother in Scotland.”

 

[29]      On page 9 of its decision the Regional Court stated that P “should not have problems with settling in when he returns to his mother’s abode.”  At the foot of the same page the Regional Court stated the following:

“Her exercising parental responsibility will also enable the minor and his step brothers to be brought up together”

 

[30]      The Regional Court concluded as follows:

“In light of the above there is no doubt that the decision by the District Court should be considered as being in line with the child’s interests.”

 

[31]      For completeness, I should briefly mention that in July 2015 the petitioner applied to the District Court in Poznan for reversal of its earlier decision by making an award of the exercise of parental rights in his favour and limiting the respondent’s rights.  The respondent’s position is that at the time she removed P in August 2015, she was not aware that this application had been submitted.  The District Court dismissed the application on 26 October 2015 while suspending the proceedings pending the outcome of the present petition.  In her decision, the District Court judge emphasised that in the earlier proceedings the respondent had not hidden the fact that she intended to live with P in Scotland, “quite the contrary”.  The judge continued as follows:

“The further intention of (the respondent) to live in Scotland together with the minor (P) was also known throughout the course of the previous proceedings to: (the petitioner), the expert, and the Court conducting the previous proceedings.”

 

[32]      The District Court judge added the following:

“Of course it is possible to undertake further proceedings for another 9 years, until the minor reached the age of 18 years, however with all certainty it would not help in getting by the boy the sense of security and stability, which should be a priority for every loving parent.  The sense of security is extremely essential for the normal development of the minor.  Hence the former decision to this effect is final and recent and no special circumstances have been pointed out to confirm the application to impose the protection, there are no grounds to find the minor’s interest indicates another change of place of abode and as a result to take into consideration the application to impose the protection.”

 

[33]      In my opinion, in refusing the application for reversal of its earlier decision, the District Court clearly proceeded on the basis that the effect of its earlier ruling had been that P was to live with the respondent in Scotland.

[34]      The expert instructed on behalf of the petitioner, Dr Joanna Kosińska‑Wiercińska, expressed the opinion that the District Court’s order of 31 October 2014 had not given the respondent permission to relocate P to Scotland.  Her opinion was that a separate application for international relocation would have to be made for this to be allowed.  Since no such step had been taken, the respondent did not have authority to take the child to Scotland and was accordingly in breach of the petitioner’s rights of custody.   She drew attention to a passage in the decision of the District Court of 26 October 2015 where it is stated that the lawyer then appearing for the respondent appears to have accepted that there had been no application for permission for emigration, but that consideration would be given to filing one.

[35]      I prefer the opinion expressed by Ms Anna Stokłosa to the effect that the District Court’s order of 31 October 2014 granted the respondent custody of P on the basis that he would live with her in Scotland.  As Ms Stokłosa observes, it is telling that the District Court did not stipulate that the petitioner should have the right to co‑decide on the choice of where P should live, but only on a change in his place of abode.  I agree with Ms Stokłosa that it is obvious from the District Court’s written reasons that its ruling was made on the basis that P would reside with the respondent in Scotland.  I note that Dr Joanna Kosińska‑Wiercińska does not appear to take issue with this interpretation of the written reasons;  her position is simply that they should not be taken into account.  That seems to me to be a somewhat narrow and unrealistic approach.  While it may be open to the respondent to make a separate application for permission to be given to the child to emigrate from Poland, this does not, in my opinion, detract from the clear basis on which custody was awarded in favour of the respondent by the District Court on 31 October 2014. 

[36]      For these reasons, I conclude that the respondent did not act in breach of the petitioner’s custody rights by removing P from Poland on 22 August 2015.  I consider that she was lawfully entitled so to do.  There having been no wrongful removal of the child, Article 12 of the Hague Convention is not engaged and there is no basis upon which this Court should order that P be returned from this country to Poland.  It follows that the petition must be refused on that basis.

[37]      I should mention that in the course of her submissions counsel for the petitioner drew my attention to the Outer House decision in T, Petitioner 2007 SLT 543.  That case concerned whether the father of a Polish child retained rights of custody under the terms of a Polish decree of divorce.  It was held that the decree did not give the mother sole discretion to determine the domicile and/or legal residence of the child.  The wording of the order in T differs from that of the District Court’s order in the present case.  Moreover, in the present case the respondent accepts that the petitioner has rights of custody within the meaning of the Hague Convention.  In these circumstances, T does not assist.

 

The Second Issue
[38]      In view of my decision on the first issue, it is strictly not necessary for me to express a view on the second issue, but in deference to the arguments addressed to me I shall briefly do so.

[39]      It was accepted by both counsel that the threshold for deciding whether, under and in terms of Article 13 of the Hague Convention, a child objects to being returned to another country is a fairly low one.  Reference was made to:  Urness v Minto 1994 SC 249;  In re M (Abduction:  Rights of Custody) [2008] 1 AC 1288 and to F v M and another [2015] EWHC 3300 (Fam), a decision of Cobb J.

[40]      In the present case there is no doubt that P objects to being returned to Poland.  When Mr Inglis saw him recently, the child became immediately and significantly distressed when the question of returning to Poland was raised with him.  According to Mr Inglis, P was “absolutely clear” that he did not want to return to Poland even for a limited period.  He was apprehensive that if this happened he would be put into a lower class;  this happened previously.  I should note that the petitioner does not accept that P would necessarily be put down a class, but the fact remains that P is concerned about the matter.  Later in his report Mr Inglis describes P’s views on the issue of whether he wishes to return to Poland as being emphatic.  Mr Inglis observes that P has given a reason for that which is drawn from his own experience and which relates to his own circumstances if he was even temporarily returned to Poland.

[41]      As to his age and level of maturity, P is now 10 years and 4 months old.  Mr Inglis explains in his latest report that he is progressing satisfactorily at school; his English is improving;  he does not require additional support; and he is popular with his peers.  I accept that P does not have a developed understanding of the judicial process and of the nature and purpose of the present proceedings.  This does not, however, mean that he is not of a sufficient level of maturity for account to be taken of his views.  In most respects, he appears to be a normal child for his age.  It would be unusual for the Court not to take account of the views of a 10‑year‑old boy.  In the circumstances of the present case, I consider that I should take his views into account.  They are genuine;  they appear to be strongly held;  and there is no real basis for the suggestion that P has been unduly influenced by the respondent.  Had it been necessary for me to rule on the question, I would have taken P’s views into account.

[42]      In that event, I would have had a broad discretion as to whether to order that P should be returned to Poland.  In the circumstances of the present case, I would have had little difficulty in holding that it would not be right to make such an order.  P has now been living with his mother, the respondent, in Scotland since August 2015.  He is happy and well‑settled here.  On the whole, he has adjusted to this country very well.  He is close to his step‑father and has a contented family life here.  He has recently moved to a new school where his performance is improving, as is his progress with English.  His teachers have noted that he has gained in confidence.  His prowess at soccer has earned him the respect of his class mates.  It would be enormously disruptive to uproot him and send him back to Poland so that the courts of that country could deal with the question of where and with whom he should live.  As I have explained, those courts have already held on three occasions that he should live with his mother in Scotland.  It is very unlikely that they would come to any different conclusion if they were asked to consider the question again.  So, a return order would be largely pointless in practical terms.  I acknowledge that the petitioner feels strongly that P’s longer‑term interests would be better served by his being educated in Poland, but I consider that the petitioner’s preferences in this respect are heavily outweighed by the importance of protecting the stability which has now been established in P’s life.  I note also that the respondent has no objection to P having appropriate contact with the petitioner.  I very much hope that meaningful contact will now be agreed between the parties.  Overall, I am satisfied that this is a case in which the policy objectives of the Hague Convention must yield to what is clearly in the best interests of the child.

 

Conclusion
[43]      For the reasons I have set out, I shall sustain the first plea‑in‑law for the respondent and refuse the Petition.  I shall reserve all questions of expenses.