Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 79

 

P273/17

OPINION OF LADY WISE

In the petition of

ES

FOR ORDERS UNDER CHILD ABDUCTION AND CUSTODY ACT 1985

Petitioner

against

EML

Respondent

Petitioner:  Hayhow; Morton Fraser LLP

Respondent:  Ennis; Balfour + Manson LLP

12 May 2017

Introduction and background
[1]        The petitioner resides in Spain and is the father of EVSM (“the child”) who was born on 27 September 2012 in Spain.  The respondent, EML is the child’s mother and is Spanish.  The parties were married on 16 March 2012 in Spain.  There is a dispute about when they finally separated, the respondent contending that it was in August 2015 and the petitioner stating that it was in May 2016.  In any event, they are still married but the petitioner has raised divorce proceedings in the local Spanish court.  The respondent has another child, a son “A” who is 11 years old and has always lived with her.  He lived with the parties when they were married and together and he now lives with the respondent who has reconciled with his natural father.

[2]        On 21 July 2016 the respondent travelled to Scotland and has been here since then with both EVSM and A.  At the time of the removal of the child EVSM from Spain the petitioner held and was exercising rights of custody to her. The child was indisputably habitually resident in Spain on 21 July 2016, the date of her removal.   The circumstances in which she was removed from Spain are contentious and constitute the primary area of dispute in this case.  However, the respondent initially contended that there had been no wrongful removal and that the petition was not engaged.  The pleadings and initial argument at the hearing before me reflect that. After discussion at the hearing, counsel for the respondent conceded that the first plea in law in her answers should be repelled as there had,  on the face of it, been a wrongful removal from Spain on 21 July 2016.  Accordingly, the sole  issue in the case is now the respondent’s contention that the petitioner consented to that removal.  A fall‑back position in her pleadings to the effect that, even if he had not consented thereto the petitioner had subsequently acquiesced in the child’s removal from Spain to live in Scotland was not advanced at the hearing. 

 

The applicable law
[3]        The relevant provisions of the Hague Convention on the  Civil Aspects of International Child Abduction are contained in Schedule 1 to the Child Abduction and Custody Act 1985.  The provisions are well known in this court and are litigated here reasonably frequently.  In essence, Article 3 of the Convention provides that the removal or the retention of a child is considered wrongful where (a) it is in breach of rights of custody of a person or body, jointly or alone, under the law of the State in which the child was habitually resident immediately before that 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.  Where request is made to the contracting State to which the child has been taken and where a period of less than one year has elapsed from the date of the wrongful removal or retention the judicial or administrative authority of the relevant contracting State must order the return of the child to the country of habitual residence forthwith.  There are specific limited defences available where an order to return the child under the Convention is sought and Article 3 is engaged.  These are contained in Article 13.  For the purposes of this case only the first of these defences is relevant.  The first part of Article 13 provides:

“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 …”

 

[4]        As indicated, the sole defence now stated is that the petitioner consented to the move to Scotland.  The applicable law on a defence of this sort is well settled.  First, where the issue of consent has been raised, the onus is on the parent who asserts that the removal was with the consent of the other parent to prove that this was so – KT v JT [2004] SC 323 at 326.  Such an interpretation is the only one consistent with the terms of Article 13 itself which requires the person opposing a return to establish any of the listed defences.  Importantly, the consent to removal has to be “real, positive and unequivocal” – Re K (Abduction):  Consent [1997] 2 FLR 212 per Hale J, at 217.  Where a defence of either consent or acquiescence is advanced the question of whether the wronged parent has so consented or acquiesced depends on his actual state of mind, the subjective intention of the wronged parent being a question of fact for the judge at first instance to determine – Re H & others (Minors) (Abduction): Acquiescence [1998] AC 72 at 90, cited in KT v JT at paragraph 15.

[5]        The case of KT v JT also confirmed beyond doubt that even where there is consent to a removal it remains a wrongful removal within the meaning of the Convention where the provisions of Article 3 are satisfied.  Accordingly, establishing consent is not an end to the matter.  Article 13 simply provides that the court of the requested State is not bound to order the return of the child where one of the defences is made out.  The proper course where such a defence is established is to move to the stage of the exercise of discretion to decide whether or not to order a return.  In KT v JT the Lord President (Cullen) discusses the exercise of discretion stage in cases in which consent to removal is established.  The court must bear in mind the general purpose of the convention, including discouraging the  uprooting of children from the jurisdiction in which they have been habitually resident and having any dispute between parents as to the future of their children dealt with in that jurisdiction being the one where the best information is available.  However, where consent has been established, the purpose of the convention may carry less weight, particularly if there is no question of a respondent having acted in an underhand way.  The exercise of discretion also involves consideration of the child’s welfare and whether it points to desirability of being returned to the state of habitual residence or remaining in Scotland.  That requires the court on the basis of such material as is laid before it, to look at the child’s current circumstances – KT v JT, at paras 31-33

[6]        I was referred to other authorities, particularly on the issue of establishing habitual residence in wrongful retention cases where the applicable date for determining habitual residence was in dispute.  Standing the concession now made by the respondent these have no application to the current case.

Consideration of the affidavit evidence and documentary material
[7]        The petitioner lodged two affidavits (Nos 9 and 19 of process), the second in response to the respondent’s answers, setting out his position on the removal of the child from Spain.  He states that his marriage broke down in about May of 2016.  After separation he was permitted contact with his daughter only every second weekend.  In early June 2016 the respondent asked him to sign the relevant documents to obtain an identification card and passport for the child.  She told him that this was required so that she could go on a summer holiday to Romania and stay at the home of his extended family there.  The petitioner is Romanian although has lived in Spain for many years.  He states that he asked for permission at his place of work so that he could have time away from his place of employment to attend at the police station during working hours and assist the respondent in the application for the issue of a passport and ID card for EVSM.  Support for his position in relation to this aspect is provided by the affidavit of his employer, MMN, No 23 of process, who confirms that in June 2016 the petitioner asked for permission to leave his workplace for a while together with his wife in order to apply for the issue of a passport and ID card for their child.  The employer indicates that he was told at the time by the petitioner that the reason for his request to leave work for this purpose was that  the passport and ID card were required in connection with  a holiday to Romania.  The petitioner disputes entirely the case stated now for the respondent that the purpose of securing the passports was so that she could move to Scotland.  He states that he has no connection with Scotland, his wife had never mentioned Scotland to him and that he had never consented to any trip of any kind by his child to this jurisdiction.  He states that on Friday 22 July 2016 he received a call from the respondent who said that he could not collect his child the following day for weekend contact as she and the child had gone on holiday to Scotland.  The petitioner states that he immediately questioned why his estranged wife and child were in Scotland on holiday.  He then discovered through social media that they had gone, as he understood it at the time, to visit the father of the respondent’s child A.  He felt deceived and betrayed as he had never consented to the child going on any trip to Scotland.  There were telephone calls between the parties thereafter, but it was not until sometime in early September that the respondent confirmed her intentions to him in a message sent to his mobile phone, telling him that she and the child would not return to Spain.

[8]        On 25 July 2016 the petitioner had raised divorce proceedings in the local Spanish court.  The initiating writ and relative translation are contained at Nos 6/6 and 6/7 of process.  In these proceedings he seeks shared parental rights, custody and care of the child of the marriage.  Once it became clear to the petitioner that the respondent was not going to return to Spain with the child he made a complaint to the Spanish criminal authorities in relation to her alleged abduction.  On 26 September 2016 he appeared before the Clerk of the Court of First Instance at the relevant Spanish court in relation to summary criminal proceedings against the respondent for child abduction.  On that date he produced to the court evidence to verify that the respondent had told him that she intended to stay in Scotland.  He exhibited a message received on his mobile phone to the court, the clerk confirming that the message was sent from a mobile telephone registered to the respondent to the mobile telephone number of the petitioner.  The text message is set out in full in the Spanish court document No 6/10 of process and is in the following terms:

“You have nothing to speak to him about.  He has nothing to do with this matter.  He has no relationship with me or with (the child).  He is merely the father of A.  I can’t predict the future;  at the moment we are here and we are going to stay here.  He can’t clarify anything for you, because we are not in a relationship.”

 

While the petitioner had produced that message to the court in Spain as illustrative of the respondent’s confirmation that she did not intend to return to that jurisdiction, in these proceedings the petitioner relies on it also to cast doubt on the respondent’s credibility.  The “he” referred to in the message is the father of A, the respondent’s current partner IJ.  The petitioner’s position is that the respondent had concealed from him any intention to reconcile with IJ and that even when he discovered that she had gone to Scotland to be with him, she had been untruthful about the nature of their relationship.

[9]        The petitioner’s petition is also supported to some extent by the affidavits of ASR, his brother’s partner (No 20 of process) and GS, his sister (affidavit No 21 of process).  GS in particular confirms that she had understood that the child’s passport had been obtained in connection with a planned trip to Romania in the summer.  She states that in addition to the child and her brother A, the respondent and her own father, together with her father’s partner were all going to stay at the petitioner’s family home in Romania.

[10]      The respondent’s position, as set out in her affidavit No 72 of process is in stark contrast to that of the petitioner.  She states that her relationship with the petitioner broke down in August 2015 and that she left to live with her parents until November 2015 when she was able to move into her own place with her two children.  She states that in about May 2016 she decided to look into moving over to Scotland.  By then she had been in touch with her former partner, the father of A, who had told her that he was getting on well in this jurisdiction.  Her position is that she spoke to the petitioner in May 2016, told him she was planning to come to Scotland and asked for his help in order to allow her to do so.  She states that the petitioner signed the paperwork for the passport and the ID card in the context of him agreeing that she and the children were moving to Scotland.  She denies that there was any planned holiday to Romania.  She denies that any trip to Scotland was going to be a holiday.  However, the respondent concedes that she concealed from the petitioner that she was in fact moving to Scotland to live with her former partner.  She states that she told him she was moving to Scotland for a better life for herself and the children and that she knew someone in Scotland who would help them settle there.  She states that she gave  the petitioner the address at which she and the children would be staying at in Scotland.  In fact the respondent, IJ and both children moved from that address to another one in the same area at the end of September 2016. The new address was never provided to the petitioner.  She states that, but for the fact of her having given the petitioner her address he would not have known where they were staying.  The respondent’s position is that she  had told the petitioner that when she moved to Scotland he could come over and visit whenever he wanted.  The respondent states that she travelled to Scotland to see IJ and look at the circumstances here in late June 2016.  She states that it was when she was here for that visit that she purchased  one way tickets for both children and herself “… to travel over to Scotland in July.” (7/2 para 13).  In that part of her affidavit she claims that she was unable to use her own email account to book the tickets because she had forgotten her password and so had to use an alternative email address. The only one she claims that she knew was the petitioner’s email address, so she used that and as a result he received the reset details for her email account.  She claims that the petitioner then later told her that he had received this and he had seen the email about the tickets.  She states that despite knowing the details of the move the petitioner raised no objection to it. 

[11]      The respondent’s position is that the petitioner did not object to her move to Scotland until he found out that she was living with her current partner.  She states that he has changed his mind about the child living in Scotland because he is unhappy that she living with IJ.  The respondent considers herself and both children to have settled well in Scotland.  She is Spanish and is far from fluent in the English language.  She required the assistance of an interpreter in the proceedings.  However she states that she is attending English lessons at a local community centre. 

[12]      The respondent’s current partner, IJ, has sworn on affidavit (No 7/30 of process).  IJ is Hungarian but lived in Spain for some time.  He was involved in a relationship with the respondent during that period and they had a child together, A, when the respondent was only 18 years of age.  He states that their relationship ended on good terms and he stayed in contact with the respondent and her family over telephone and social media.  IJ moved to Scotland in 2012 and has settled well here.  He is in employment and intends to remain here.  He seems to have been in touch with the respondent either by social media or telephone in the early part of 2016 and he states that in May of that year he and she began talking about her moving over to Scotland with both children.  He confirms that the respondent came for a two week visit in late June, was very happy in the area of Scotland in which he lived and wanted to move over.  He had no direct contact with the petitioner in relation to the planned move.  He states that he heard a telephone conversation between the petitioner and the respondent on 23 July 2016 after the respondent had arrived in Scotland.  He states that he can remember the respondent saying to the petitioner that he could speak with the child whenever he wanted and that he could organise to come over and visit in future.  He thought there were other phone calls between the parties thereafter when he was out at work. 

[13]      The respondent’s father, MMDR also provided an affidavit (No 7/31 of process).  His position is that the respondent moved in with him and his wife in the middle of 2015 as a result of problems she was having with the petitioner.  His recollection was that she and the children lived with him and his wife for around two months.  He states that the petitioner knew that the respondent was thinking of moving abroad with the children and that he had given her permission to that and had signed the paperwork to allow her to get a passport for the child of the marriage.  He had seen the petitioner in June 2016 when the respondent went to visit Scotland for 15 days.  He states that he:  

“…took it for granted that the petitioner knew that (the respondent) was planning on moving to Scotland to live in Scotland with the child”.

 

However, his affidavit also states that after the respondent had gone to Scotland:

 

“… I received a phone call from the petitioner asking me what was going on.  I cannot remember exactly when this was but I remember it was after (the respondent) had moved.  I just hung up the phone.  I didn’t understand what it was that he was speaking about …”

 

[14]      So far as other documentary evidence is concerned, the respondent lodged the email confirmation of her flight booking for 21 July 2016 (7/7 and 7/8 of process).  These documents illustrate that in fact the respondent flew from Spain to London Stansted.  She appears to have travelled by train to Scotland after arriving in London.  She also lodged a document and translation ,Nos  7/3 and 7/4 of process, that appears to confirm that she resided in the district in Spain in which her parents live at two separate addresses, one at her father’s home and one in rented accommodation from the months of July 2015 until November 2015.  When counsel for the respondent drew my attention to this document, she had understood that the respondent had resided in district of her parents throughout the period from separation in July 2015 until she left for Scotland.  However, given that the dates of her residence there are stated in the document to end at November 2015 I asked for clarification of this issue.  Having taken instructions, counsel for the respondent confirmed that the respondent had returned to the town in which she and the petitioner had lived during the marriage.  That is the town in which the child was attending nursery school prior to her removal all as stated in the initiating writ of the divorce proceedings raised by the petitioner.

[15]      I have considered carefully the affidavits, documents and submissions made in relation to the issue of consent.  Where there is only affidavit evidence available and there are direct contradictions in the accounts of the parties with no extraneous supporting evidence, no conclusion about the veracity of one account or the other can be drawn – D v D 2002 SC 33 at para 7.  Both sides in this case contend that there is extraneous information supporting their position.  The petitioner points to the affidavit of his employer and also to a more limited extent to that of his sister in relation to the purpose for which the petitioner provided consent to the issue of a passport and ID card for the child in June 2016.  For her part, the respondent relies on the affidavit of her father and to some extent of her partner both of whom state they had the impression that the petitioner knew of the intended plan.   So far as the message sent by telephone in September 2016 and lodged by the petitioner at the Spanish court is concerned, the respondent’s position at the hearing was that she denied that she had sent the message at all.  Her position was that she had difficulties using her mobile  phone when she had been in Scotland on the visit in late June and so had left it at home in Spain when she departed  for Scotland in July.  No explanation was offered as to how a message in the terms recorded by the court could have been sent from her mobile phone, the account for which remained registered in her name at the time, to the mobile phone of the petitioner.  The respondent’s position was that she had come to Scotland without any mobile phone and had used the telephone of her partner for a short period before obtaining a new one.  In relation to the documents about where the respondent was living prior to departure, the petitioner’s counsel pointed out that the respondent’s  own affidavit gave the impression that she had remained in the area where her parents lived when the position now seemed to be that she accepted she and the petitioner were living in the same town until the date of her departure.

[16]      I have concluded that the respondent has failed to establish that the petitioner gave   ‘real, positive and unequivocal ‘consent to the removal of the child EVMS from Spain for the purpose of coming to settle in Scotland.  Leaving aside the less independent evidence of the petitioner’s sister and the respondent’s father and current partner, the only independent evidence confirming the basis on which the petitioner consented to the issue of a passport and identification for the child is provided in the petitioner’s employer’s affidavit.  That affidavit supports the petitioner’s account that he required to leave work in order to attend the police station during office hours to sign the necessary documents.  Although the English translations of the petitioner’s affidavits provided in this case are a little stilted, it is clear from the employer’s affidavit that the understanding he had of the purpose for which the passports were being obtained was one he gained from the petitioner at the time, ie in June 2016.  Accordingly, the only independent evidence supporting the issue of the passports is to the effect that this was for a holiday to Romania rather than for a removal to Scotland and so is contrary to the respondent’s position.  Counsel for the respondent submitted that it was most unlikely that the respondent would have been going on holiday, particularly with her own family, to the petitioner’s home country following separation from her spouse.  However, one of the undisputed facts of this case is that  the child has both sets of grandparents living in Spain in the same region.  Nothing in the documentation supports the contention that the petitioner’s parents  would be present in Romania for the planned holiday, simply that there is a  family home there that the respondent, the children, the respondent’s father and his partner were to use.  Against that background, it seems perfectly plausible that the petitioner would have been happy for the family home in Romania to be used by the respondent and the children for a holiday, particularly if his position that the parties had only separated in May 2016 is correct.

[17]      It is not possible on the information before me to conclude with any confidence which party is correct in relation to the date of the marriage breakdown.  The respondent’s position is a little unsatisfactory.  There is good evidence that she resided in the district in which her father lives for some months in 2015.  However,  the evidence she produces does not cover the period November 2015 to July 2016, nor does her affidavit clarify that she had returned to live  in the same town (whether or not in the same home) as the petitioner until the date of her departure and that the child was attending nursery school there.  There is also a lack of clarity in the petitioner’s position.  Although he seems clear both to the court in Spain and in his affidavits that he and the respondent separated in May 2016 he also states (paragraph 7 of 19 of process) that he had relied on the respondent in June 2016 stating that she wanted to the documents to go on holiday to Romania because the parties “… had not broken up yet.”  That seems inconsistent with the date of separation he has already stated, although it would be consistent with a hope on the petitioner’s part that the separation was not permanent, in other words that the marriage had not broken down irretrievably.  However, I can work only with the translation that has been provided and there is a slight tension between the two positions.  Neither side suggested that there had been a separation in 2015 followed by a reconciliation, although that would be one possible explanation for the respondent’s return to the town in which the matrimonial home was situated.  Overall, I am simply unable to decide this particular point although it is not essential for disposal of the case.

[18]      Importantly, the surrounding circumstances in this case are more supportive of the petitioner’s position than that of the respondent.  It seems to me to be inherently implausible that the petitioner, separated from his wife but exercising contact to his daughter, would agree to her removing the child to Scotland in order to live in a country with which neither party had any prior connection. Even on the respondent’s own account, the petitioner did not know that she was to reconcile with IJ who would be her partner here in Scotland.  The petitioner’s position is that he was initially told that the respondent had brought the child to Scotland for a holiday.  There was then a period when he telephoned her and tried to find out more about what was happening.  When he received the telephone message stating that she intended to remain in Scotland, he immediately engaged the assistance of the Spanish courts and the matter has been treated as a criminal abduction there.  It is usually extremely difficult to form a view on the credibility of a witness where only affidavit evidence is available.  However the respondent’s denial in relation to the message sent in September 2016 is wholly unconvincing.  She had, on her own account, concealed that she was resuming her relationship with IJ and planning to live with him in Scotland.  The message sent from  the mobile phone registered in her name to the petitioner’s mobile phone denies that there is any relationship between her and IJ at all but confirms that she intends to stay in Scotland.  In the absence of any explanation as to with whom the respondent claims to have left her mobile phone in Spain, far less who might have had the motivation to send a message containing a mixture of truth and falsehood, I consider the petitioner’s position that this was received by him in the context of him trying to find out from the respondent what was happening in Scotland to be far more plausible.  It is interesting that the respondent’s father’s own affidavit records a telephone call made by the petitioner to him after the respondent’s arrival in Scotland trying to find out what was going on.  This flies in the face of the respondent’s account that everything had been agreed with the petitioner in advance.  I regard it as improbable also that the petitioner would have allowed the respondent to leave for Scotland with the child, on the basis, as the respondent and her partner would have it, of a vague assurance that he could visit whenever he wanted.  It begs the question of why the respondent, whose own family are Spanish and live in Spain, would not, had there been discussions, have offered to bring the child back to Spain to visit as part of an agreed relocation plan. The unquestioning acceptance by the petitioner of the respondent’s planned relocation, as claimed in the respondent’s affidavits, is at odds with his subsequent actings. Further, the divorce proceedings raised by the petitioner instructed around the time he discovers the respondent has taken the child for what he is told is a holiday to Scotland, are based on the parties both being resident in Spain in the same region.  The terms of the writ and the orders for shared parental contact sought by the petitioner presuppose that the child will continue to live in Spain.  That cannot be reconciled with the respondent’s contention that the petitioner had known since May 2016 that she was planning to relocate to Scotland and had consented thereto, short of the petitioner embarking on some concealment from the court from the outset in relation to a previously agreed relocation plan.  That, again, seems inherently unlikely.

[19]      There are questions that remain unanswered by the material provided by both sides in this case.  For example, the respondent offers no evidence of her relocation plans in terms of giving notice to depart any accommodation in Spain or informing the child’s nursery that she would not be returning or even of what she did with the personal belongings she must have left in Spain.  For his part, the petitioner offers little detail of the discussions that took place between the parties during the first few weeks following his discovery that his wife was in Scotland.  However what is clear (and admitted by her) is that the respondent was not open with  the petitioner in relation to the detail of her plans.  Her account of the petitioner accessing her flight details (7/2 of process, para 13) is implausible and even bizarre. In any event, it cannot be wholly accurate as she did not buy tickets to travel to Scotland, she booked flights to London and had the petitioner accessed her email account that is what he would have seen.  Further, she states in her affidavit that she and her partner moved house after she came to Scotland because “…we needed somewhere with more space.”(7/2 of process at para 23). She and JL moved to their current accommodation in September 2016. She does not explain why, if the move to Scotland was planned in advance as a permanent one and with the agreement of the petitioner, steps had not been taken prior to her arrival in Scotland to secure accommodation that was spacious enough for her and the children.  Taking these factors into account and in all the other circumstances, including in particular , the court documents in the divorce action initiated by the petitioner in Spain in July 2016, the affidavit of the petitioner’s employer, the actings of the petitioner on discovering the respondent’s intention to remain in Scotland and  with the content of the telephone message from the respondent to the petitioner in September 2016, I conclude that the respondent’s account is, on balance, improbable and likely to be untrue.  I am clear that the she has failed to establish the defence of consent in terms of Article 13.  Even had the onus not squarely been on the respondent in this case, I would have regarded the petitioner’s stated position as more likely to be true.    

[20]      In the circumstances it is unnecessary for me to address the question of how I would have exercised my discretion had the defence of consent been established.  However, as I heard argument on the matter, it may be useful if I do so.  In my view, this is a case where, even if the respondent had established that the petitioner had consented to her coming to Scotland, the general purpose of the convention would carry a little more weight than in some other cases involving the consent defence.  In KT v JT stated earlier at paragraph 32, the Lord President (Cullen) was careful to note that the Convention may carry less weight where consent is established if there is  no question in that case of the respondent having acted in an underhand way.  In contrast, in this case, as I have indicated, even on the respondent’s own account, she was not straightforward with the petitioner about the motivation for her move and concealed the fact that the child of the marriage would be living with the natural father of A.  Accordingly, while of course the purpose of the convention may have less weight than in a case where there has been no consent of any kind, it would in this case have had a stronger bearing on my decision.  I would have taken into account that this child is Spanish with a Spanish mother, a father settled in Spain and both maternal and paternal grandparents residing in that jurisdiction.  She has lived in Spain all of her life until the removal to Scotland.  The parties are still married and the Spanish court is seised of issues relating to their divorce and arrangements for the child’s care.  Until her removal to Scotland EVSM had never met the respondent’s current partner with whom she currently lives.  If returned to Spain she will be returning to a location with which she is most familiar and to a home that she knows.  Apparently she has cousins living next door to the home where the petitioner currently stays and could return to the same nursery school she was attending prior to her wrongful removal.  The town in which the matrimonial home was situated, the home of the petitioner’s parents and the home of the respondent’s parents are all within a distance of 10‑30 kilometres of each other.

[21]      On the other hand the respondent points out that the child’s primary attachment would appear to be with her, with the child’s half‑brother A and, it is said now, with the respondent’s current partner.  The child has to some extent integrated in the local community in Scotland.  She is learning to speak good English.  The respondent, her partner and the children appear now to be attending a local church and an affidavit from the minister there has been provided (No 17 of process).  However, attendance at Sunday worship at that church has in the words of the minister “at best been sporadic” although since these proceedings were raised they have attended two Sundays in a row.  The child has since October 2016 been attending nursery school in Scotland and the respondent has enrolled her in a local primary school in the hope that she will be allowed to remain.  The respondent has produced some material indicating that the child is living in a happy and reasonably settled environment here.  The respondent is now pregnant with her third child although the baby is not due to be born until August.  The respondent would require to answer the criminal proceedings raised against her were she to return to Spain.  I was told in submissions that, even if the child is returned to Spain the respondent will not return with her and will chose to remain with her partner and A in Scotland. The respondent also alleges that the petitioner has criminal convictions and has produced a document (No 7/12 of process) that appears to record that he was sentenced to some form of community service in 2016 and that he may not have complied with its terms. Counsel for the petitioner had instructions to the effect that the document does relate to the petitioner and that the conviction to which the sentence relates was for driving without insurance.  This is the sort of issue that a court seised of the welfare issues in relation to the child would want to consider. It would not have had a material bearing on the exercise of my discretion.

[22]      In all the circumstances, even had consent of any kind been established by the respondent, I would have been minded to make an order for return of the child.  The short period of her life in Scotland is of less significance than her Spanish birth citizenship and residence for the first four years of her life.  Her native language and that of her mother is Spanish.  The parents are not yet divorced and the Spanish court is still to determine what

arrangements most appropriate for her care and upbringing in that context.  The child has extended family on both sides in the same region in Spain.  The respondent has a choice of returning to her home country on an order for return being made or of remaining in Scotland.

 

Conclusion and disposal
[23]      The respondent having failed to establish that the petitioner consented to the child’s removal from Spain to Scotland, the Article 13 defence pled fails.  No issue for the exercise of my discretion arises.  I will make an order for return of the child.  The petitioner indicated that he would be prepared to travel to Scotland to come and collect the child.  However, I consider it appropriate to give the respondent the opportunity, once she has been informed of this decision, to decide whether she would prefer, notwithstanding her submissions to the contrary, to return with the child herself or to discuss whether some other arrangement can be agreed between the parties.  I have arranged a By Order hearing at which the specific arrangements for the child’s return can be determined.