Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 75

 

P178/17

OPINION OF LORD MULHOLLAND

In the Petition of

YG

Petitioner

against

 

EEP

Respondent

Petitioner:  Inglis;  SKO Family Law Specialists

Respondent:  Malcolm;  Thorley Stephenson SSC 

 

10 May 2017

Introduction
[1]        This is a Petition seeking an order under the Child Abduction and Custody Act 1985 (the 1985 Act) for the return to Sweden of a young girl (the child) who was born in Sweden on 1 May 2009.  The mother of the child is the respondent.  The child resides with her mother in Scotland.  The petitioner is the father of the child and resides in Sweden.

 

Background
[2]        After her birth the child lived in Sweden with her parents who were then in a relationship.  They have never been married to one another.  They separated on or about August or September 2015.  The respondent returned to Scotland in September 2015.  The child stayed with the petitioner in Sweden.  The respondent returned to Sweden in January 2016 and the child then resided with the respondent in an apartment, the petitioner moving to a new apartment.  The petitioner had weekend and holiday contact with the child, as agreed between the respondent and the petitioner, although there is a dispute about the “take up” of the contact.  On 7 June 2016 the respondent returned to Scotland with the child, unbeknown to the petitioner.  In terms of the laws of Sweden, on said date the petitioner and respondent had joint custody of the child.  The petitioner made application to the Swedish courts on 17 June 2016 for sole custody of the child.  On 13 July 2016, Södertälje District Court in Sweden (the Swedish Court) appointed a Guardian ad litem to protect the interests of the child.  The guardian attempted unsuccessfully to make contact with the respondent.  Notwithstanding this failure, the guardian contested the petitioner’s application which included the demand for interim custody (6/13 of the inventory of productions).  On 8 September 2016 the Swedish court ordered that the petitioner be granted sole custody of the child on an interim basis.  On 16 September 2016 a detention order was issued for the respondent, in her absence, on the basis that there was probable cause to suspect that she had committed the offence of unlawful abduction of a child (judgment of the Swedish Court dated 10 November 2016 which is 6/4 of the inventory of productions).  The detention order remains in force.  On 5 October 2016 the Swedish prosecutor issued a European Arrest Warrant for the arrest and extradition of the respondent (7/1 of the inventory of productions).

[3]        The application by the Swedish authorities for the arrest and extradition of the respondent was refused by a sheriff at Edinburgh Sheriff Court on 19 January 2017 (6/7 of the inventory of productions).  The basis of the refusal was that the requirement of dual criminality (Extradition Act 2003 section 64(3)) was not met as the offence set out in the European Arrest Warrant was not an offence in Scots Law.  The initial removal of the child from Sweden was not a breach of a court order as there was no court order in place at the time the child was removed from Sweden.  Accordingly, no offence was committed in Scots law.  This decision has not been appealed and proceedings are at an end in Scotland.  However, the detention order issued in Sweden on 16 September 2016 remains in force.

 

The Present Proceedings
[4]        The petitioner commenced the current proceedings on 23 February 2017 when the petition was lodged.  On 9 March 2017 the court appointed Ceit‑Anna MacLeod, advocate as a child welfare reporter.  Having interviewed the child at her school on 21 March 2017 Ms MacLeod prepared a report dated 23 March 2017.  The report informed that the child did not want to speak with the reporter or offer comments or views about living in Scotland or returning to Sweden.  The respondent lodged a report from a chartered clinical psychologist dated 30 March 2017 based on an interview with the child on 29 March 2017 which confirmed that the child does not wish to be removed from her maternal family and returned to Sweden to be with the petitioner, that such a return would have a negative impact on her psychological wellbeing and developmental functioning, at least in the short term, and that forced separation from the respondent would have a negative impact on her.  The rules of the Court of Session (RCS 70.6) envisage that applications will normally be determined on affidavits and other documentary evidence.  The Hague Convention process is of a summary nature.  Affidavits were lodged from the petitioner (6/2, 6/8 and 6/14 of the inventory of productions), the respondent (dated 29 March 2017) and the petitioner’s Swedish attorney (6/15 of the inventory of productions).  A number of documents were also lodged (6/1 to 6/19 for the petitioner and 7/1 to 7/6 for the respondent).  I have read and considered all this material in reaching my decision. A second hearing took place on 3 and 4 April 2017 when submissions were presented by counsel on behalf of both parties.

 

The Applicable Law
[5]        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.

[6]        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.”

 

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.

[7]        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….”

 

[8]        Article 13 of the Hague Convention provides as follows:

“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...”

 

[9]        As Sweden and the United Kingdom are European Union states, the Hague Convention is affected by Council Regulation 2201/2003 (EU 2201/2003).  In terms of section 1 of the 1985 Act the provisions of the Hague Convention are subject to Article 60 of EU 2201/2003 ((d) to (e)) by virtue of which the Regulation takes precedence over the Hague Convention, in so far as it concerns matters governed by the Regulation.  In terms of Article 11.4 of EU 2201/2003 a court cannot refuse to return a child on the basis of Article 13b of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

[10]      A number of cases cited to me are instructive in applying the relevant provisions of the Hague Convention, the 1985 Act and EU 2201/2003.  In In Re M (Abduction: Rights of Custody) [2008] 1 AC 1288, a United Kingdom Supreme Court case, Baroness Hale of Richmond at paragraph 42 (page 1307) explained the policy considerations of the Hague Convention as follows:

“In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.”

 

In respect of the application of Article 13b of the Hague Convention the authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child and Article 13b should be applied restrictively so as the object of the Hague Convention is not to be defeated (In Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 per Baroness Hale of Richmond and Lord Wilson delivering the judgment of the court at paragraph 30 - page 160).  Detailed child welfare considerations are generally speaking not a consideration for the requested state as it is assumed that the prompt Hague Convention return of a wrongly removed child is in the child’s best interests.  One of the objects of the Hague Convention is to restore the child as soon as possible to the home country so that any dispute can be determined there (In Re E (Children) (Abduction: Custody Appeal) supra, at paragraph 8).  In considering article 13b the burden of proof lies with the respondent (In Re E (Children) (Abduction: Custody Appeal) supra, at paragraph 32) and the risk to the child must be grave.  This is defined at In Re E (Children) (Abduction: Custody Appeal) supra, at paragraph 33 as follows:-

“… the risk to the child must be grave. It is not enough, as it is in other contexts such as asylum, that the risk be real. It must have reached such a level of seriousness as to be characterised as grave. Although grave characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as grave while a higher level of risk might be required for other less serious forms of harm.”

 

With regard to “physical or psychological harm or otherwise place the child in an intolerable situation” in Article 13b of the Hague Convention, this is defined at paragraph 34 of In Re E (Children) (Abduction: Custody Appeal) supra, as follows:-

“Third, the words ‘physical or psychological harm’ are not qualified. However, they do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation' (emphasis supplied). As was said in In re D [2007] 1 AC 619, para 52, ‘”Intolerable” is a strong word, but when applied to a child must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate”’. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e g, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.”

 

[11]   With regard to the views of a child, who has attained an age and maturity to express a view and who objects to being returned to the requesting state, the court may take account of this view but this is not determinative or presumptively so.  As Baroness Hale of Richmond stated in In Re M (Abduction: Rights of Custody), supra, at paragraph 46 (page 1308):

“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.”

 

In M Petitioner 2005 SLT 2 Lady Smith at paragraph 38 (pages 11 – 12) helpfully set out the questions for the court in considering the views of the child.  These are:

1.   Does the child object to being returned to the requesting state?

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

If the answers to these questions are in the affirmative the court has to determine whether it should exercise its discretion and refuse an order for return.  In considering whether or not to exercise this discretion the court will have regard to:-

“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 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.”

 

Whether the Removal of the Child was Wrongful?
[12]      The respondent accepted that the removal of the child was wrongful.  6/10 of the inventory of productions is a letter from Isabelle Carringer, Minister of Foreign Affairs, Sweden dated 10 March 2017.  The letter records that according to Swedish law (Children and Parents code 1949: 381 sections 11 and 13 - 6/5 of the inventory of productions) the petitioner and respondent had joint custody of the child between 25 May 2009 and 8 September 2016 (6/12 and 6/14 of the inventory of productions also confirms this to be the case).  This covers the date (7 June 2016) on which the child was returned to Scotland without the consent of the petitioner.  The letter records that according to Swedish Law parents who have shared custody over a child shall jointly make decisions concerning the child’s personal affairs.  This means in principle that one custodian may not, without consent from the other custodian, make important decisions concerning the child.  An example of such a decision may be to move with the child.  An application for the return of the child under the Hague Convention can be made when parents have joint custody. It is therefore clear to me that that the removal of the child was wrongful.  I am therefore satisfied that the concession was rightly made.

 

The Issue in this Case
[13]      The issue for this court is whether or not to exercise discretion in terms of Article 13 of the Hague Convention not to order the return of the child to Sweden. In terms of Article 12 of the Hague Convention an order should be made for the return of the child to Sweden unless the requirements of Article 13 are met and the court considers that it is appropriate to exercise its discretion not to order the child’s return.  The requirements of Article 13 being that (the requirements of 13a do not apply in this case) there is a grave risk that the child’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation (subject to Article 11.4 of EU 2201/2003) or where the child has attained an age and degree of maturity at which it is appropriate to take account of the child’s views and the child objects to being returned.

 

Submissions for the Petitioner
[14]      The petitioner acted promptly in raising proceedings before the Swedish courts for custody of his daughter.  This was done within 10 days of the child’s abduction to Scotland (6/13 of the inventory of productions).  The abduction was planned having regard to the date of the child’s UK passport which was obtained shortly before moving to Scotland and the terms of text messages (6/13 of the inventory of productions).  The petitioner has made repeated attempts to contact (direct and indirect through family members) the respondent since her return to Scotland, as had the guardian ad litem.  These have been unsuccessful.  It is inconceivable that the respondent was unaware of the proceedings in Sweden having regard to the attempts at contact and the documentation sent.  Even on the respondent’s own account (paragraph 36 of her affidavit) she was aware, by 10 November 2016 at the latest, of the custody proceedings in Sweden.  She could have taken steps to seek a variation of the Swedish court order but did not do so.  This was therefore a deliberate and planned abduction in the knowledge of a joint custody arrangement where the petitioner had acted promptly to assert his rights.  The Swedish court order had been intentionally subverted by the respondent’s refusal to engage in the process which she was aware was ongoing.  Child welfare issues outwith the strict limitations of Article 13b of the Hague Convention require to be dealt with in the state of habitual residence, in this case Sweden.  Even if it could be established that the requirements of Article 13b are satisfied in this case, the court in considering whether or not to exercise its discretion must take into account the policy considerations underlying the convention.  The nature of the abduction causes the policy considerations to be of particular import in this case.  This court should not conduct its own investigation into what is in the best interests of the child. In terms of Article 13b the risk must be grave that the child would suffer psychological harm or be placed in an intolerable situation (the respondent does not aver a risk of physical harm).  The threshold was therefore set far higher than an ordinary balance between two competing alternatives.  Sweden is an advanced Western jurisdiction with a well‑developed court system based on the rule of law.  It has developed legal processes (including being signatories to International Conventions) such that it could reach decisions on the best interests of the child.  These included processes where the child and parents are legally represented.  The Swedish court considered that it was in the best interests of the child to grant interim sole custody to the petitioner.  Court orders can be varied.  The potential trauma of returning the child, per the psychological report, to Sweden would not meet the test of grave risk or otherwise of intolerability.  In any event, adequate arrangements have been made to secure the protection of the child if returned to Sweden and in terms of Article 11(4) of EU 2201/2003 a court cannot refuse to make an order for return of a child where such arrangements have been made.  With regard to the child’s wishes, the child failed to state her wishes to the child welfare reporter, which process took place in a neutral setting outwith the presence of the respondent.  Eight days later the child expressed a view to the psychologist.  There was no basis in the psychological report that the child was of sufficient age or maturity to express a view.  The interview with the psychologist took place in the respondent’s home, at risk of maternal influence having been brought to bear.  The child only objected when her mother was proximate.  Emotions were running very high and this could have influenced the child.  The psychologist did not address in her report whether the child’s views are authentically her own or unduly influenced by the respondent and her immediate family.  With regard to the family relations test (page 5 of the psychologist’s report), it was striking that the strength of feeling expressed by the child in relation to the petitioner was not expressed 10 days earlier to the child welfare reporter.  This should be viewed with suspicion.  The court cannot be satisfied that the child has a strong objection given the conflict between the child welfare and psychological reports. There was no information in the psychologist’s report that the child appreciates that the purpose of the order for return, to which she objects, would be to enable the court in Sweden to decide on her future and welfare.  There was nothing in the report to suggest the child had sufficient maturity to understand this point.  The contents of the psychologist’s report did not meet any of the tests set out by Lady Smith in M Petitioner, supra, at paragraph 38 and for all these reasons an order should be made for the child’s return.

 

Submissions for the Respondent
[15]      The respondent accepts that the child was unlawfully removed from Sweden.  However, the respondent required to leave Sweden as she had been effectively rendered homeless as the petitioner had removed her name from the lease of the property where she resided.  As the child has not been in Scotland for more than 12 months the settlement defence was not available in this case.  The child has been in Scotland for 10 months and the court can take account of this in determining whether or not to exercise its discretion in terms of Article 13 of the Hague Convention.  Ten months is a long time in the life of a young child.  The respondent does not rely on Article 13a of the convention as there was no consent or acquiescence by the petitioner in the removal or retention of the child.  The psychologist’s report demonstrates a grave risk that if returned to Sweden, the child would be exposed to psychological harm or placed in an intolerable situation.  The respondent does not aver that the child, if returned to Sweden, would be exposed to physical harm.  The terms of the psychologist’s report read whole, including the recognised method of assessment, demonstrates that the child has attained an age and maturity such that the objection to a return to Sweden should be taken into account.  The child’s objection to return to Sweden was strongly held and strongly expressed.  Article 13b should be applied restrictively but not so restrictively that an order for the return of a child would never be made.  Regard should be had to the best interests of the child and the psychologist’s report demonstrates that there would be a grave risk of psychological harm if the child was returned to Sweden.  This would also place the child in an intolerable situation.  There was nothing in the petitioner’s affidavits to show that adequate arrangements have been made to secure the protection of the child after her return.  There was no indication that the kind of support set out in the psychologist’s report could be facilitated.  There was nothing in the affidavits to show how the petitioner would provide for her.  If returned to Sweden, the child would be in the sole custody of the petitioner.  The child was left in the petitioner’s care between September 2015 and January 2016.  The petitioner claims to have looked after his daughter himself.  However, the respondent believes that the petitioner brought his parents from Turkey to look after the child.  The petitioner works long hours (11am to 9pm) seven days per week.  The child does not have any emotional attachment to her paternal family and if returned would be looked after by someone with no emotional attachment to her.  If returned to Sweden, there would be a negative impact in psychological wellbeing on her developmental functions across a number of domains.  An order for her return would place her in an intolerable situation.  This was not just the rough and tumble of a child’s life.  As she stated to the psychologist, she would be “sadder than sad”.  The decision of the Swedish court was reached entirely on the basis of the petitioner’s information provided to the court.  The Guardian ad litem had no contact with the child or the respondent.  There was no evidence of undue maternal influence of the child.  The purpose of an order for return was not discussed with the child, but in view of the strength of the child’s opposition against return, the child’s view is unlikely to change.  If the respondent returns to Sweden she will be taken into detention and subject to a penalty of between 6 months to 4 years’ imprisonment.  This enforced separation would cause psychological harm to the child.  The child has developed a strong emotional bond with her half‑brother who was rejected by the petitioner (paragraphs 21 and 22 of the respondent’s affidavit).  If returned to Sweden her half‑brother would remain in Scotland and this separation would result in psychological harm.  The child had settled well in school (report card is 7/5 of the inventory of productions).  If returned to Sweden this would have a detrimental impact on her education.  Article 11.4 of EU 2201/2003 only applies to Article 13b of the Hague Convention, it does not apply to a child’s objections to return.

 

Decision
[16]      A number of questions were posed in the remit for the preparation of the psychology report.  In respect of Article 13b of the Hague Convention, the relevant questions are 2 and 3, namely 2. to assess psychological and developmental impact on the child if returned to Sweden and 3. to assess and describe the psychological and developmental impact on the child of a possible separation from her mother.  By way of background the report provides a psychological assessment of the child’s current functioning at home, at school and in her community, utilising evidence‑based psychological assessment methods and best practice frameworks.  These were a multi‑method approach incorporating Self and Caregiver report, Teacher report and psychometric symptom inventories.  The report considers the evidence in the context of Child Development Frameworks and Scottish Government Frameworks of Childhood Wellbeing.  In carrying out the assessment the reporter had regard to the petition and answers, the interlocutor of 9 March 2017, a copy of the respondent’s precognition (as amended on 8 March 2017), a copy of the petitioner’s affidavit dated 20 February 2017 (6/8 of the inventory of productions) and a copy of an email from, Markus Hankkio, Public Prosecutor, dated 23 March 2017 (7/4 of the inventory of productions).  In assessing the child’s current functioning at home, school and in her community interviews were conducted with the child (she also provided expressed views in verbal and written format), the respondent, the child’s maternal grandparents and her head teacher.  Observations were carried out on the child at her home and a family relations test was completed by the child and a standardised child behaviour checklist was completed by the respondent and the child’s head teacher.  The methodology was not criticised by the petitioner’s counsel but the scope of the enquiry was criticised in respect that there was no enquiry carried out with the petitioner and his family in Sweden (beyond a consideration of the petition and the petitioner’s affidavit of 20 February 2017).  There was no information before me to the effect that an attempt had been made to speak to the petitioner, his family, the guardian ad litem or the authorities in Sweden about the impact on the child of a return to Sweden.  This would be important given that the psychologist makes conclusions about the psychological and developmental impact on the child, if returned.  This seems to me to be an important omission which reduces the weight to be attached to the report.

[17]      In respect of the second question, the report concluded that the child was functioning well at home and at school and in her community.  There were no current psychological concerns of note, apart from some emotional avoidance and suppression (as judged by UK cultural norms) and shyness and speech inhibition.  The child was meeting all developmental milestones and was now achieving academically at the same level as her Scottish peers.  The information from her mother and head teacher confirmed that she was meeting all wellbeing indicators, and the child told the author that she feels included and safe and proud of her achievements in Scotland.  With regard to a return to Sweden, the author stated that a return was likely to be challenging and have a negative impact on the child’s psychological wellbeing and on her developmental functioning, at least in the short term.  This was assessed as not in her best interests.  The author stated at page 10 of the report that the child’s possible return to Sweden,

“may be sudden, is likely to be hard for a child to comprehend, and may not benefit from the close proximity and support of her primary caregiver, her Mother. ln addition to this separation and loss of her Mother, she will also have numerous other losses i.e. of her sibling, wider maternal family, friends and community. The enormity of this as a prospect is visibly overwhelming for her and in my opinion is likely to continue to be experienced in a negative way. The process has the potential to be traumatic for her, and is likely to be experienced as a negative and adverse life event.”

 

There is a further omission in the report which is in my view significant, that is whether the child understands, and if so, is able to be afforded the opportunity to provide comment on that understanding, that the purpose of the order for return would be to enable the court in Sweden to decide on her future and welfare.  This has not been covered with the child and reduces the weight to be attached to the report.  The respondent’s counsel submitted in response that in view of the strength of the child’s opposition against return the child’s view was unlikely to change if the child was aware of the purpose of an order for return to Sweden.  That may be the case or it may not be the case.  That is speculation. The requirement articulated in M Petitioner, supra, by Lady Smith at paragraph 38 exists for good reason, namely to ensure that the child’s views are fully informed and can therefore be properly taken into account. 

[18]      The psychologist recognised that measures could be taken to moderate the effect of a return to Sweden.  The effects could be moderated by preparation and planning, understanding and by the support of familiar adults around them.  Contact between the child and her father should be instigated to begin to prepare her to be reunited with him and information should be provided regarding the community, school and living circumstances she will be returned to.  Additional agency support should be provided and the petitioner should make early contact with local social work services, education and health services to access additional supports and interventions for his daughter.

[19]      In respect of the third question, the psychologist considered it difficult to estimate the actual impact of the child’s separation from her mother going forward.  Measures could be taken to moderate the effect of a return to Sweden unaccompanied by her mother.  Moving to parents or caregivers, who parent or care in a similar manner to her mother and maternal family could support the transition.  Preparation and planning in the form of contact with the paternal family should be instigated before departure and this should be done in a safe and supportive manner, without adult conflict.  She should be encouraged to speak and rehearse her use of the Swedish language.  Clear contracting between parties regarding arrangements for the child to remain in contact with the respondent, her half-brother and maternal family will also help her with the separation.  The engagement of social and psychological services should also be facilitated to support the child and the petitioner.  These services could play a vital role in supporting and monitoring the wellbeing and welfare of the child during this period.  The psychologist concluded in respect of the third question as follows:

“Forced separation from her Primary Caregiver, her Mother, is likely to have a negative impact on her Attachment system and Psychological wellbeing and will be experienced as an adverse and stressful childhood experience.”

 

[20]      With regard to access to the Swedish courts the respondent can litigate on issues such as custody, visitation and child residence (including on an interim basis).  This can be done from custody.  Visitation between the mother and child could take place in prison, if the court considers this to be in the best interests of the child.  Given that the issues involve a child, this could be done quickly as children’s cases are prioritised (6/16 of the inventory of productions).  The obvious point is therefore, that if the child is returned to Sweden it is open to the mother to litigate on these issues and all options are available to the courts in Sweden.  It is perfectly possible that the Swedish courts could order that the respondent should have custody of the child, residing in Scotland, with contact and access rights for the petitioner, if this is in the best interests of the child (6/18 of the inventory of productions).  The equivalent of legal aid in this country is available in Sweden and the respondent has a public defence attorney appointed for her and can speak with the prosecutor in relation to issues with the warrant.  If the respondent is prepared to cooperate with the Swedish authorities there may be a possibility that the prosecutor will be flexible in execution of the warrant for arrest (6/16 of the inventory of productions).

[21]      With regard to whether adequate arrangements have been made to secure the protection of the child, if returned, the petitioner founds on 6/17 and 6/19 of the inventory of productions.  6/17 is an email dated 3 April 2017 from Arnela Bogaljevic, the Social Welfare Secretary of Laxå Municipality in Sweden, in answer to a request from the petitioner’s Swedish Counsel, regarding the arrangements to be carried out into the child’s welfare upon a return to Sweden.  The email records that the child will be able to start attending a school close to her father’s address shortly after her arrival in Sweden.  In addition, the Family Centre in Laxå is available as a meeting place for parents of children which will provide access to various services for the promotion of the child’s health and wellbeing.  The centre provides consultations, courses and groups which provide knowledge about child development and parental experience.  The staff at the family centre includes a teacher and a welfare officer.  6/19 of the inventory of productions is another email from Arnela Bogaljevic dated 4 April 2017.  It confirms that social services in Laxå have a responsibility to ensure that children are not harmed (mentally or physically) and that they get basic and emotional needs met by the parents.  Shortly after the child’s arrival in Sweden, social services can make a home visit to meet the child and her father.  During the visit a social worker and a member of staff from the family centre will talk to the child and her father and observe their interaction by the Marte meo method.  This is a recognised method developed in the 1970’s where normal situations between a child and educator (in this case a parent) were recorded and later watched to enable discussion.  By this method, strengths and weaknesses of both children and parent in their interaction should be more easily recognised, which in turn aims at helping both to gain the optimism and power to solve educational issues themselves.  As a result social services will decide on what support measures are necessary and appropriate.  The support measures include counselling and interaction therapy.

[22]      I have also had regard to the various affidavits including those of the respondent and her sister.  With regard to the affidavit from the respondent’s sister dated 29 March 2017, in addition to information about the parties, their relationship in Sweden, the breakdown of their relationship and the reason for the respondent’s return to Scotland, she deponed that the child would be at risk if returned to Sweden in respect that the petitioner could move to Turkey with her and require her to take part in an arranged marriage when she reached 16 years of age (Turkey is a signatory of the Hague Convention –from 8 January 2000).  She also highlighted a potential language barrier as a result of the child having lost her ability to speak Swedish.  With regard to the affidavit from the respondent, it details the breakdown of the relationship, life in Sweden, the care of the child in Sweden, the respondent’s return to Scotland for four months between September 2015 and January 2016 and the care of the child in Sweden during that period, the respondent’s return to Sweden, the resumption of her care of the child, her accommodation problems whereby she would have been rendered homeless, her financial difficulties and lack of financial support by the petitioner, her return to Scotland with the child, her motivation for this, the failed extradition, the Swedish court process and documentation thereof, the language barrier issue, the risk of the child being taken to Turkey from Sweden, the risk of arranged marriage, life in Scotland for her daughter and her daughter’s wish not to return to Sweden.

[23]      Having had regard to all this material I am satisfied that Article 13b is not met in this case.  I have no doubt that there will be difficulties and challenges for the child in returning to Sweden and there is a risk that the child may be exposed to psychological harm.  However, I do not consider this risk to have reached such a level of seriousness as to be characterised as grave, as defined in In Re E (Children)(Abduction: Custody Appeal), supra.  It is accepted by the respondent that there is no physical threat to the child from her father and applying the sliding scale test set out by Baroness Hale of Richmond at paragraph 33 of In Re E (Children)(Abduction: Custody Appeal), supra, a higher level of risk would be required for a less serious form of harm.  The child psychologist does not use the adjective “grave” (or similar language) when describing the risk of psychological harm to the child.  I do not regard the respondent as having reached the level required in Article 13b.  The child has lived in Sweden for a large part of her life.  She has spoken Swedish in the past and can do so again.  She has lived in Sweden with her father, and paternal family, for most of her life.  She was cared for by her father (and paternal family) for a period of four months when her mother returned to Scotland without her.  She was not taken to Turkey to live during that period and if there is such a risk as the respondent fears then there are measures that can be taken to deal with it.  Swedish law is well developed in putting the interests of the child at the core of decision making.  The Swedish courts have the options available to them as are available here.  These include relocation orders with visitation rights for the other parent.  The principles underlying the Hague Convention recognise that the courts of the country exercising custody rights at the time of the child’s removal are best placed to determine what is in the best interests of the child.  It is not for this court to conduct an investigation and evaluation of what is best for the child beyond consideration of Article 13.  In terms of Article 11.4 of EU 2201/2003 adequate arrangements are available to secure the protection of the child after her return.  These include measures to prepare the child for a return to Sweden such as re‑engagement with the Swedish language and resuming and rebuilding contact with the petitioner and his family.  The child will be able to attend a Swedish school soon after returning.  Swedish social services and the family centre in Laxå are available to provide bespoke support and assistance using recognised methodologies.  As recognised and indeed recommended by the child psychologist these measures will moderate the impact of a return to Sweden.  As stated in the report the effects of major transitions on children can be moderated.  They can be moderated by preparation and planning, understanding and by the support of familiar adults around them.  These are the measures which are available to be utilised upon the child’s return to Sweden and the child will not be placed in an intolerable position given the support available.  In my opinion, adequate arrangements have been made to secure the protection of the child after her return and Article 11.4 of EU 2201/2003 is applied.

[24]      With regard to the views of the child, the child welfare reporter records that the child did not express a view on a return to Sweden.  Ten days later the child told the psychologist that she objected to being returned to Sweden.  This objection was expressed after the psychologist used emotion cards and writing materials and conducted a clinical interview (page 6 of the report describes the process).  She described returning the Sweden as making her “sadder than sad”.  The psychologist concluded that the child:

“is of the view that a return to Sweden will deeply sadden and distress her. Her expressed view is that she does not wish to be removed from her Maternal Family, Community and School and she does not wish to be returned to the care of her biological Father YG. This view was assessed to be of sufficient maturity, clarity and validity to be respectfully rendered appropriate for consideration by the court”

 

Despite the inconsistency between the two reports, ten days apart, I am prepared to accept that the child objects to being returned to Sweden and has attained an age and degree of maturity at which it is appropriate to take account of her views.  I am also prepared to accept that undue influence was not brought to bear on the child in expressing her objection.  There is no evidence of undue influence and I must proceed on that basis.  According to the psychologist the child was able to express herself, her view was consistent throughout and she presented a rationale for her perspective.  Further the emotions displayed by her were consistent with the words used to describe her feelings.  Both these findings give me the confidence to hold that the child has attained an age and degree of maturity that I can take account of her views.

[25]      Notwithstanding that the child objects to a return to Sweden, I am of the view that a return to Sweden is justified in all the circumstances.  Weighing up the child’s objection with all the other factors in the case, I am of the view that it is appropriate to order the child’s return to Sweden.  These factors are that the Swedish Courts are best placed to determine what is best for the child, the need to respect the judicial processes of Sweden, a recognition of the options available to the Swedish courts, including the option of relocation, the expedition by the petitioner in seeking interim custody and an order under the Hague Convention for the return of the child, the fact that Sweden is a signatory to the United Nations Convention on the Rights of the Child which requires States to put the best interests of the child as a primary consideration, the need to deter child abduction, the measures which will be taken in preparation for the child’s return to Sweden and upon her return to Sweden to moderate the effects of the return, the fact that the child has spent a large proportion of her life in Sweden during which time she lived with the petitioner (in family with the respondent) and the fact that she lived in Sweden with the petitioner, and his paternal family, for four months whilst the respondent was living in Scotland.  In my opinion these factors outweigh the child’s objection and the integration of the child in this country (having spent ten months here).

 

Decision and Further Procedure
[26]      In the whole circumstances, and for the reasons outlined above, I shall grant the order sought for the return of the child to Sweden and repel both pleas in law for the respondent.  I shall appoint the cause to be heard “By Order” to enable parties to consider the timing of the child’s return to Sweden and also the practical arrangements for the child’s return and for her support.  Meantime, I shall reserve the question of expenses.