PETITION OF FPS FOR ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 [2024] ScotCS CSOH

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF FPS FOR ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 [2024] ScotCS CSOH_45 (23 April 2024) URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024_CSOH_45.html Cite as: [2024] CSOH 45, [2024] ScotCS CSOH_45

OUTER HOUSE, COURT OF SESSION

[2024] CSOH 45

P92/24

OPINION OF LORD STUART

in the Petition

FPS

Petitioner

for

Orders under the Child Abduction and Custody Act 1985

Petitioner: McAlpine; Family Law Matters

Respondent: Trainer, Drummond Miller LLP

23 April 2024

Introduction

[1]

This is an application, by the petitioner, under the Child Abduction and Custody Act

1985 for the return to Spain of two boys. I will call the boys Charles and James to make them

real while respecting their anonymity. Charles was born in April 2011. James was born in

March 2016. The petitioner is Charles and James' father. The first respondent their mother.

The petitioner and first respondent were previously in a relationship and resided together in

Spain. The petitioner is a Spanish national. The first respondent is a British national.

Charles and James are Spanish nationals. Charles was born in Scotland but has lived in

Spain since 2013. James was born, and has lived his whole life, in Spain. The second and

third respondents have not entered process, so I need not say anything further about them.

[2]

The petitioner and first respondent resided together until January 2022 when the first

respondent left the parties' family home and moved into rented accommodation, after which

the parties operated a shared care regime in respect of the children. In May 2022, due to

financial reasons, the first respondent moved to Scotland where she resided with her

parents. Thereafter the first respondent continued to have contact with the children, which I

address in more detail below. On 14 December 2023 the children travelled to Scotland with

the petitioner's mother. From 14 to 18 December 2023 the children stayed with the first

respondent and her parents at her parent's house. The children were returned to the care of

the petitioner's mother on 18 December 2023, who was due to return to Spain with the

children on 19 December 2023.

[3]

Whilst at the airport pending return to Spain, Charles put his and James' passports in

a bin and refused to board the flight to Spain. Charles told the petitioner's mother that he

did not want to return to Spain. The police attended and took care of the children. The first

respondent was telephoned and attended the airport. The children were released into, and

have remained in, the first respondent's care, residing at, it appears principally, the first

respondent's parent's house.

[4]

The petition was served on 26 January 2024.

Applicable law

[5]

The Child Abduction and Custody Act 1985 gives legal force in the UK to the Hague

Convention on the Civil Aspects of International Child Abduction ("the Convention"). Both

the UK and Spain are signatories to the Convention. Accordingly, the relevant terms of the

Convention govern whether the orders sought by the petitioner should be granted. Insofar

as relevant to the submissions made to me, the terms of the Convention are as follows:

"Article 3

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. ...

Article 12

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.

The judicial or administrative authority, even where the proceedings have been

commenced after the expiration of the period of one year referred to in the preceding

paragraph, shall also order the return of the child, unless it is demonstrated that the

child is now settled in its new environment. ...

Article 13

Notwithstanding the provisions of the preceding article, the judicial or

administrative authority of the requested State is not bound to order the return of the

child if the person, institution or other body which opposes its return establishes

that--

(a) the person, institution or other body having the care of the person of the

child was not actually exercising the custody rights at the time of removal or

retention, or had consented to or subsequently acquiesced in the removal or

retention; or

(b) there is a grave risk that his or her return would expose the child to

physical or psychological harm or otherwise place the child in an intolerable

situation.

The judicial or administrative authority may also refuse to order the return of the

child if it finds that the child objects to being returned and has attained an age and

degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this article, the judicial and

administrative authorities shall take into account the information relating to the

social background of the child provided by the Central Authority or other competent

authority of the child's habitual residence."

[6]

It is conceded on behalf of the first respondent that (i) on 19 December 2023 Charles

and James were habitually resident in Spain, (ii) the petitioner has custody rights in respect

of Charles and James under the law of Spain and (iii) on 19 December 2023, the petitioner

was exercising those rights. Standing these concessions, it follows that under reference to

Article 3, Charles and James are being wrongfully retained in Scotland and, subject to the

provisions of Article 13, in accordance with the terms of Article 12, this court should order

the return of Charles and James to Spain forthwith.

[7]

However, as discussed further below, the first respondent argues under reference to

Article 13 that the court should not order Charles and James's return to Spain because both

object to being returned to Spain and both have attained an age and degree of maturity at

which it is appropriate to take account of their respective views.

[8]

The leading authority in "child objection cases" remains In re M [2007] UKHL 55;

[2008] 1 AC 1288. The leading speech, with which the other judges agreed, was delivered by

Baroness Hale of Richmond. By way of introduction to the Convention, Baroness Hale at

paragraphs 11 and 12 said:

"11. The Hague Convention on the Civil Aspects of International Child Abduction

1980 is an admirably clear and simple instrument. Its twin objects are set out in

Article 1:

`(a) to secure the prompt return of children wrongfully removed to or retained in any

contracting state; and (b) to ensure that rights of custody and of access under the law

of one contracting state are effectively respected in the other contracting states.'

...

12. But it should not be thought that the Convention is principally concerned with

the rights of adults. Quite the reverse.

...

Hence the Convention is designed to protect the interests of children by securing

their prompt return to the country from which they have wrongly been taken, but

recognises some limited and precise circumstances when it will not be in their

interests to do so."

[9]

From paragraph 42 Baroness Hale addresses the exercise of discretion under the

Convention generally and then in relation to child objection cases:

"42. 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.

43. My Lords, in cases where a discretion arises from the terms of the Convention

itself, it seems to me that the discretion is at large. The court is entitled to take into

account the various aspects of the Convention policy, alongside the circumstances

which gave the court a discretion in the first place and the wider considerations of

the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ

in the passage quoted in para 32 above, save for the word `overriding' if it suggests

that the Convention objectives should always be given more weight than the other

considerations. Sometimes they should and sometimes they should not.

44. That, it seems to me, is the furthest one should go in seeking to put a gloss on the

simple terms of the Convention. As is clear from the earlier discussion, the

Convention was the product of prolonged discussions in which some careful

balances were struck and fine distinctions drawn. The underlying purpose is to

protect the interests of children by securing the swift return of those who have been

wrongfully removed or retained. The Convention itself has defined when a child

must be returned and when she need not be. Thereafter the weight to be given to

Convention considerations and to the interests of the child will vary enormously.

The extent to which it will be appropriate to investigate those welfare considerations

will also vary. But the further away one gets from the speedy return envisaged by

the Convention, the less weighty those general Convention considerations must be.

...

46. In child's objections cases, the range of considerations may be even wider than

those in the other exceptions. The exception itself is brought into play when only

two conditions are met: first, that the child herself objects to being returned and

second, that she has attained an age and degree of maturity at which it is appropriate

to take account of her views. These days, and especially in the light of Article 12 of

the United Nations Convention on the Rights of the Child, courts increasingly

consider it appropriate to take account of a child's views. Taking account doesn't

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.

...

48. All this is merely to illustrate that the policy of the Convention does not yield

identical results in all cases, and has to be weighed together with the circumstances

which produced the exception and such pointers as there are towards the welfare of

the particular child. The Convention itself contains a simple, sensible and carefully

thought out balance between various considerations, all aimed at serving the

interests of children by deterring and where appropriate remedying international

child abduction. Further elaboration with additional tests and checklists is not

required."

[10]

Lady Hale re-visited Article 13 in In re E [2011] UKSC 27. In giving the judgement of

the Court along with Lord Wilson, the Court made a number of observations of general

relevance as follows: (i) the context in which these cases arise has changed in many ways

from the context in which the Hague Convention was originally drafted ... [t]here is every

indication that the paradigm case which the original begetters of the Convention had in

mind was a dissatisfied parent who did not have the primary care of the child snatching the

child away from her primary carer (paragraph 6), (ii) there is no easy solution to such

problems ... [t]he first object of the Convention is to deter either parent (or indeed anyone

else) from taking the law into their own hands and pre-empting the result of any dispute

between them about the future upbringing of their children ... [i]f an abduction does take

place, the next object is to restore the children as soon as possible to their home country, so

that any dispute can be determined there (paragraph 8), (iii) that ... the Hague Convention

... [has] been devised with the best interests of children generally, and of the individual

children involved in such proceedings, as a primary consideration (paragraph 18), (iv) in

every Hague Convention case where the question is raised, the national court does not order

return automatically and mechanically but examines the particular circumstances of this

particular child in order to ascertain whether a return would be in accordance with the

Convention; but that is not the same as a full blown examination of the child's future

(paragraph 26) and (v) the words of Article 13 are quite plain and need no further

elaboration or "gloss" (paragraph 31).

[11]

In terms of Inner House authority, in W v A 2021 SLT 62, Lord Malcolm give the

opinion of the court in connection with an Article 13 child objection defence. At para [9]

Lord Malcolm wrote:

"In Article 13 cases the age and sufficient maturity test, once passed, is a gateway to

the court exercising a discretion, authoritatively said to be `at large', as opposed to

being directed by the Convention to return the abducted child. ... In this regard

courts are increasingly giving weight to the views of the child. A child centric

approach is required, with her interests and general welfare at the forefront. The

focus is not on the moral blameworthiness of the abducting parent, nor on notions of

deterrence. While Convention considerations will always be relevant, the further

one is from the main aim of a speedy return, the less weighty they will be. If a child

is integrated in the new community it is relevant to consider the effect of a further,

and unwanted, international relocation pending the long term decision."

[12]

At para [11] Lord Malcolm explained further

"This is a child objections case and one would expect the judge to engage with the

stated reasons for the child's concerns, with due weight afforded to them, all as part

of the `child-centric' approach suggested by Lady Hale."

[13]

And then at para [16]:

"There may have been a time when disapproval of the mother's wilful defiance of

the Polish court's order would have so prejudiced her position that a return was

always going to be the likely outcome. But now the focus is on the best interests of

the child at the heart of the proceedings, not least since this is the core value running

through the Convention."

Evidence

Child welfare report

[14]

Given that the sole basis of resistance to return is the objection of the children, I was

conscious at the outset that it was appropriate to appoint an experienced child welfare

reporter. Mrs Innes, KC is a very experienced Court reporter. Mrs Innes' report is typically

comprehensive, thorough, objective and measured in answering the questions posed by the

court. It is independent. I am grateful to her for the obvious care and attention expended in

preparing it. I consider that I am entitled to place considerable weight on it and do. The

reporter was provided with copy pleadings, all affidavits, the 1

, 2

and 3rd inventories of

productions for the petitioner and 1st inventory of productions for the first respondent. The

reporter met both children. She had no direct communication with either parent. Again,

given the prominence of the children's objection in this case and that the sole visibility to the

views of the children is through the reporter, I have set out the reporter's record of the views

of the children in some detail.

[15]

The reporter spoke to the head teacher at James' current school. The head teacher

confirmed that James was getting on fine at school. He has settled well. He is engaged, well

mannered. He was very bright and mature for his age in comparison to his peers. He has

not shown any distress or unhappiness. The school has no concerns about his care at home

from his presentation at school. James had mentioned in class that he did not want to go

back to Spain because of "all the drama".

[16]

Following her discussion with James, the reporter reports that he was happy to speak

to her. He likes his teacher. He has friends in his class, some of whom he knows from

visiting in the holidays. He reported having "a lot of memories of them". He enjoys football

and plays Monday, Friday and Sunday. He lives with his mum and stepfather, Murray. He

described Murray as "very good" and "amazing". He and his brother share a room. The

house has a garden. They are hoping to get another house. His mum drops him at his

grandparents in the morning. He describes his mum as "amazing". She would "do

anything" to see him or have him stay in Scotland. He gets on well with his brother. Spain

was "not very good". His dad was drinking and driving. Most of the time he was not with

them. Their dad was "not really in the house", leaving them at the house alone. His dad

would take them (Charles and him) to their paternal grandmother's house. He "used to hate

it". James described the petitioner as "not really cool" and "very annoying". He would tell

Charles and him off for no reason, for example if they lost a football match. After his

parents had split up and his mother had moved back to Scotland she and his grandparents

would come to visit them. He and Charles visited mum for the whole of August. They

would FaceTime mum quite a lot. He was "very sad" that his mother was in Scotland whilst

he was in Spain. He used to cry at school. His brother also used to cry. He did not feel that

there was anyone in Spain he could talk to. He would cry in secret (eg in the toilet of the

school). At Christmas (2023) he and his brother planned to run away. When they were at

the airport they kept running away to the toilet but it did not work. When they were about

to board the plane his brother ran away and threw their passports in the bin. There was "all

the drama". He said he made the plan and his brother agreed. He thought he had told his

aunt of the plan and possibly his mum (albeit I note from the first respondent's sister's

affidavit that this might have been in the car after the children were collected from the

airport). He has spoken to his dad once since being in Scotland. It was "a little bit good".

He does not want to talk to his dad right now. He had moved school in Spain after the

summer. He and Charles had not wanted to leave their old schools or their friends. He

"hated" the new school. The school had a football pitch but they were not allowed to play

football on it. He had only made a couple of friends at the new school. He contrasted this to

his new school where he has about ten friends in his class and many more in the other

classes. In Spain he was not trusted to walk down the road to see his friends. However, he

is able to do this in Scotland. He did not like living in Spain "because of all the drama". He

likes being in Scotland. He "loves" living with his mum and has more freedom. James

reported that his grandparents don't like his stepdad (Murray) "for some reason", that there

had been "a drama" and that as a result they were living with Murray at the moment.

However, it wasn't as though his mum had fallen out with her parents.

[17]

The reporter met Charles at his school. When the reporter arrived Charles was with

the school nurse. He had self-referred and was in the course of completing a child concern

form. Charles was "pretty scared of going back" because of what his father had been doing.

The reporter wrote "I was concerned about [Charles]. He was ashen faced and appeared

very stressed and anxious. At times he became upset and cried a little although he was

clearly trying not to cry." Charles reported that his dad was always drunk, drove the car

whilst drunk and left them [the children] in the house on their own. He was able to give a

couple of specific examples to the reporter. One example concerned the petitioner driving

after drinking. The petitioner was unable to drive properly Charles demonstrated the car

going to and fro over the road. Charles felt "really scared". Charles knew no one at the new

school in Spain and had only made a couple of friends. The new school did not give him

"good vibes" and he missed his friends. He confirmed that they were not allowed to play

football at the new school. He was "really worried" about his brother when things were

going badly in Spain. He described the petitioner as being "pretty violent" by which he

meant that he got angry easily. His father screamed, shouted and swore. Sometimes he

threw things and he had hit James a couple of times. When at the airport in December he

and his brother were going to the toilet to waste time hoping they would miss the flight.

They said they did not want to go back to Spain. The police came. They spoke to their dad

on the telephone. He said something to James about going to jail and he, Charles, had to

reassure James. James was crying. They said they wanted to go back to see their mum.

After things had settled down in Scotland he felt "really happy"; "it felt like a dream come

true". He did not really want to speak to his dad at the moment, "he makes me angry and

sad. Mostly angry". His dad did not spend much time with them in Spain and now he is

saying that his mum has abducted them. They are currently living with his mum and

stepdad (Murray). Murray is "really nice". His mum is "trying to do the best for us". He

started school in Scotland in January and he really likes it. He has "loads of friends". He

"feels safer" there. He enjoys playing football and golf and there are opportunities to do

these things in Scotland. He misses his friends, his dog and football from Spain. In relation

to his meeting with the school nurse, Charles reported to the reporter that he had asked to

see the school nurse because he was struggling with anxiety. He was really scared of his

dad. He really did not want to go back to Spain. He was feeling angry, sad and scared. He

had been self-harming by hitting and punching himself and the nurse had suggested ways

of stopping this. He also tried to distract himself from his thoughts by playing football or

games or reading. He hoped that when his father sees what he had to say and the effect it

was having on him he will "re-think". At the moment "it seems like he does not care". He

knows "we are begging to stay". His mum's view is "100% whatever" he and his brother

want to do. If they wanted to go back to Spain she would be "fine with it although she'd be

sad." The reporter asked Charles if there was anything else he felt it important that the

judge knew. Charles said "I really, really, really, really, really, really don't want to go back".

Charles wanted the reporter to write in the report in capitals "I REALLY DON'T WANT TO

GO BACK TO SPAIN". The reporter reiterated her concerns for Charles. He appeared so

stressed and anxious. The reporter described him as "carrying the weight of the world on

his shoulders". His hope was that his father would "re-think" and listen to his views when

he saw the impact all of this was having on him.

[18]

Turning specifically to answer the questions set out in her remit, the reporter

confirmed that both children are of an age and degree of maturity that they are capable of

expressing their views.

[19]

With the caveat regarding the specific Convention context in which the term "object"

is used, the reporter confirmed that both children object to being returned to Spain. The

reporter thereafter reported that the reasons for this are linked to their father's behaviour,

their fear of him and their fear that they will never be allowed to return to Scotland again.

Further, their reasons go beyond simply an objection to being returned to their father's care.

They both expressed unhappiness with (in James' case hatred of) their school in Spain to

which they had been moved in September 2023. They objected to having been separated

from their previous school friends. They disliked the fact that there was no ability to play

football there, which they both enjoy. They had both struggled to make new friends. James

also felt that outwith school hours he had more freedom in Scotland than in Spain. The fact

that the weather would be better in Spain and there would be beaches and swimming pools

available made no difference to his desire to remain in Scotland. There seemed to be little or

no aspect of their lives in Spain that would persuade them to return.

[20]

In relation to the question of parental influence, the reporter records that she did

form the impression that the children knew quite a lot about the current litigation; however,

focusing on their expressed view that they do not wish to return to Spain, that did, to the

reporter, seem to be their own view. They were able to give reasons for that view, albeit the

reporter acknowledged that some of the reasons in relation to their father's behaviour were

likely to be subject to challenge/denial. Specifically, the reporter observed that it might be

difficult to see how a view as dramatically expressed as running away at the airport and

throwing their passports in a bin at a time when they were in the care of their paternal

grandmother as not one which was their own. I agree with that observation.

[21]

Finally, the reporter addressed the question of whether the children appreciated that

the purpose of a return to Spain would be to enable a Spanish Court make decisions about

where their future should lie. The reporter explains that prior to her visit, she did not think

that either child appreciated that return would be to allow a Spanish court to make decisions

about their future. The reporter discusses, in relation to each child, each child's

understanding of the process. The reporter concludes that following her explanation and

discussions with the children, for both children the most immediate issue would be who

they would be living with and where they would be going to school if they were back in

Spain whilst proceedings were ongoing.

Submissions

For the petitioner

[22]

Mr McAlpine lodged a written submission, which he adopted. There was no

material difference in the relevant law relied upon by Mr McAlpine to that set out above.

[23]

In relation to the question of whether the children objected to return, Mr McAlpine

accepted that,

standing the terms of the reporter's report, this question ought to be answered

in the affirmative. Whilst the petitioner did not accept the views expressed by the children

were genuinely their own, having been the subject of influence by the first respondent, these

were matters to be considered at the `discretion' stage.

Again, standing the terms of the

reporter's report, Mr McAlpine accepted that both the children had attained an age and

degree of maturity at which it is appropriate to take account of their views.

[24]

In relation to the exercise of discretion, Mr McAlpine made reference to a number of

productions and affidavits in making the following submissions relevant to the exercise of

discretion: (i) the first objective of the Convention is the speedy return of the children to the

country of their habitual residence and where, as here, little time had elapsed since the

wrongful retention, that objective ought to be afforded substantial weight, (ii) whilst the

approach to the evidence as set out in D v. D 2002 SC 33 applied, that did not, in this case,

preclude the court making findings on the basis of the affidavits and productions lodged,

(iii) from the terms of the reporter's report it was clear that the children had been exposed to

inappropriate information, from which it might be inferred that the children's views had

been influenced, (iv) the evidence before the court in connection with the children's

objections is not at a level that should give rise to the court exercising its discretion to refuse

return, (v) beyond this, there were significant welfare concerns in connection with the

children's continuing "chaotic" residence in Scotland, especially when compared to the

settled and stable life they enjoyed in Spain and (vi) the existence of the Spanish order

of January 2023 was particularly relevant and, irrespective of the dispute of whether the

respondent had been served with the Spanish proceedings, this court should respect the

Spanish order and return the children.

For the first respondent

[25]

Ms Trainer, for the first respondent, lodged a written submission, which she also

adopted. Ms Trainer relied upon the law consistent with that set out above. Ms Trainer

conceded that the children were habitually resident in Spain and that the petitioner was

exercising rights of custody, both at the material time. Accordingly, Ms Trainer accepted

that the required elements of Article 3 were satisfied and, unless one of the defences set out

in Article 13 applied, the Court was bound to return the children. The defence advanced in

this case was the children's objection to being returned. If the Court was satisfied that the

"gateway" requirements of (i) objection and (ii) the child having attained an age and degree

of maturity at which it is appropriate to take account of their views, the Court should

exercise its discretion and refuse to order return.

[26]

Under reference to the reporter's report, Ms Trainer submitted that the court could

be satisfied that (a) both children objected to being returned to Spain and (b) both had

attained an age and degree of maturity at which it is appropriate to take account of their

views.

[27]

Turning to the question of discretion, Ms Trainer submitted that, when the following

factors were appropriately weighed in the balance, the Court should refuse to order return,

namely: (1) the strength of the children's objection, as particularly evidenced by (a) Charles'

presentation, (b) the children's sustained and consistent expression of objection and (c) the

actions of the children at the airport (in particular, the court should dismiss any suggestion

that these were not genuine expressions of objection by children), (2) the narrated incidents

of behaviour of the petitioner, particularly his drinking, leaving the children unaccompanied

in the house, his anger exhibited towards the children and the frequent leaving the children

with their grandparents and (3) that the children were settled and obviously happy in their

new environment, including at school, at home and with friends.

[28]

In relation to the Spanish court action and the orders obtained by the petitioner,

Ms Trainer submitted that the order appeared to have been obtained without the knowledge

of the first respondent and due to misrepresentations by the petitioner. The first

respondent's affidavit confirms her lack of knowledge, which is supported by her mother's

affidavit. The translation of the Spanish court order lodged at 7/3 of process, page 3, records

that the whereabouts of the first respondent were unknown to the Spanish Court, despite

the petitioner knowing where the first respondent was living throughout the relevant

period. The document lodged by the petitioner at 6/57 of process provided no confirmation

of service. No formal confirmation of service of the Spanish court proceedings had been

lodged by the petitioner.

[29]

Ms Trainer also emphasised that the children's behaviour at the airport was not

instigated by the first respondent. Notwithstanding Lord Malcolm's statement to effect that

the focus is not on the moral blameworthiness of the abducting parent, nor on notions of

deterrence, this was not a case where any such moral blameworthiness could legitimately be

made out and any policy of "deterrence" did not properly apply.

Decision and reasons

[30]

As noted above, standing the concessions on behalf of the first respondent (i) that on

19 December 2023 Charles and James were habitually resident in Spain, (ii) that the

petitioner has custody rights in respect of Charles and James under the law of Spain and

(iii) that on 19 December 2023, the petitioner was exercising those rights, it follows, under

reference to Article 3, that Charles and James are being wrongfully retained in Scotland and,

accordingly, in accordance with the terms of Article 12, subject to the provisions of

Article 13, this court should order the return of Charles and James to Spain forthwith.

[31]

The first respondent argues that, in accordance with Article 13, Charles and James

object to being returned and, accordingly, I should refuse to order return.

[32]

Subject to the petitioner's assertion of influence of the children to which I will return,

on the basis of the evidence before me I accept that (i) both Charles and James object to being

returned to Spain and (ii) both are of an age and maturity at which it is appropriate to take

account of their respective views.

[33]

The question therefore becomes whether, on the basis of the evidence before me, I

consider it appropriate, in the circumstances of each child, to refuse to order Charles and

James' return to Spain. In answering that question, in accordance with the authorities cited

above, I take into consideration the nature and strength of the child's objections, the extent to

which they are authentically their own or the product of the influence of the respondent, the

extent to which the objections coincide or are at odds with other considerations that are

relevant to the children's welfare and wellbeing, as well as the general Convention

considerations. For completeness, neither party suggested that the children should be

separated from each other.

[34]

I was referred, by way of affidavit and productions, to a considerable amount of

material. Whilst I have not narrated the evidence contained in these affidavits and

productions ad longum, in reaching my decision, I have had regard to all of this material,

including the Spanish Ministry of Justice Request for Return lodged at 6/2 of process.

Having considered the material before me, remaining mindful of the directions of more

senior courts about how I must approach that material, and the submissions of counsel, I

refuse to make an order to return either Charles or James to Spain.

[35]

Both counsel attacked the credibility and reliability of the other party, submitting

that I should be cautious about accepting what certain parts of the other party's affidavits

narrated. For the petitioner, Mr McAlpine submitted that on all material points the

affidavits of the petitioner were corroborated, or at least supported, by other affidavits and

productions. For the first respondent, Ms Trainer submitted that the petitioner had

presented his case in a way that he deemed would suit his position rather than providing

the court with a full and accurate account to allow the court to make a decision in the best

interests of the children.

[36]

I have considered all of the affidavits carefully. Some matters covered in them are

more material than others to the decision before this court, for example those relevant to the

reasons for the children's objection to return and to the position of the children in Scotland

and Spain from a broader welfare perspective. In relation to such material matters, as was

authoritatively stated in D v. D 2002 SC 33, where there are contradictions between

affidavits, and no other evidence to support a conclusion one way or another, no conclusion

should be drawn; and I proceed on this basis. There are a number of material matters where

there are contradictors between the parties and I address these first.

[37]

The first of the material matters over which there is dispute is whether the petitioner

has driven after drinking alcohol as reported by the children. The petitioner denies the

allegation. The affidavits of William Halliday, Kristoffer Taft and the petitioner's father do

not address the issue. The affidavit of the petitioner's mother states that, to her knowledge,

the petitioner has never driven under the influence of alcohol. The petitioner also relies

upon 6/56 of process, together with the affidavit from the Spanish lawyer Mariano Gomez,

which Mr McAlpine submits show that the petitioner has 14 out of a maximum of 15 points

on his licence. Mr McAlpine also submits that no independent evidence has been lodged in

support of the allegation. The first respondent states that the petitioner was arrested for

drink-driving on three occasions and received two bans, one of which was for refusing to

give a breath specimen. The first respondent's sister refers to her own awareness of the

petitioner being caught drink driving on two occasions.

[38]

In relation to 6/56 of process, together with the affidavit from the Spanish lawyer

Mariano Gomez, whilst these might establish the current status of the petitioner's licence,

they might not reflect the historical position. The inference I draw from Mr Gomez's

affidavit and 6/56 of process is that the Spanish driving licence system operates on the basis

of deduction of points for offences, thus the positive statement that the petitioner has the

maximum number of points (albeit Mariano Gomez is not correct about this, the petitioner

having 14 of a maximum of 15) and, like the UK system, points deductions (additions in the

UK) will be time limited, thus a person can recover their position over time. If that is

correct, and that is the inference I draw from the material before me, then any previous

arrest and its consequences might not be apparent from a licence, so again might not shed

light on the contradictions between the parties' respective positions. Further, it strikes me

that the comments from the first respondent and her sister, even if correct, are not time

specified and are likely to be historical. In terms of previous arrest, Mariano Gomez's

affidavit is qualified by reference to information he has but the extent of that information is

not explained. To that extent none of the above facts appear to bear directly on the actual

experiences reported by the children. If matters ended there, I might consider that I was in

the territory of D v D. However, I also have the position of the children as clearly expressed

to the reporter. No reason has been put before me to disregard what the children said to the

reporter about their father's drinking, for which specific instances are referred to; for

example because, it might be suggested, the children have either been fundamentally

mistaken or for some reason have lied to the reporter. As I have already said, the reporter is

very experienced, she had the parties' pleadings and most of the affidavits, she was well

aware of the issue of the petitioner driving whilst under the influence of alcohol. Had the

reporter had any concerns regarding the veracity of what the children had told her of such

matters, I would have expected the reporter to raise these as being relevant to the children's

objections. In these circumstances, I accept that the children have direct experience of their

father driving the car whilst under the influence of alcohol, including when they have been

in the car.

[39]

The second matter over which there is dispute between the parties relates to whether

the first respondent assaulted the petitioner with a baseball bat and the consequences

thereof. The first respondent states that whilst the court might have made a ruling about the

alleged assault she did not assault the petitioner with a baseball bat. Mr McAlpine

submitted, under reference to 6/52 and 6/54 of process and the affidavit of Mariano Gomez,

that the first respondent's position was unsustainable and that this reflected adversely on

her credibility and reliability. Mr McAlpine also submitted that the evidence demonstrated

that the first respondent is a violent person and that given her behaviour the first

respondent has had limited contact with the children since December 2021. I accept

Mr McAlpine's submission that the first respondent's position in relation to the assault

in December 2021 is contradicted by the productions and affidavit referred to and that this

does reflect adversely on the first respondent's credibility and reliability. I do not accept

that it demonstrates that the first respondent is a violent person. It does demonstrate that

the first respondent committed a violent act on that day. However, the circumstances

appear unclear and there is a suggestion that the parties' relationship was difficult at this

time. I note that the first respondent's sister states in her affidavit that she thought the

argument started as a result of the petitioner "sleeping with their neighbour". I also note

that 6/52 of process records that the first respondent had no previous convictions and there

is no independent evidence before me to suggest any similar, subsequent behaviour. In

relation to the asserted causative link between the first respondent's behaviour and limited

contact with the children, I address this element of the submission next. Thus, while I accept

that the recorded events of December 2021 did take place, I also consider that they have little

bearing on the issues before me.

[40]

The third matter over which there is a dispute is the extent to which the first

respondent had contact with the children following her moving out of the family home

in January 2022 and thereafter following her return to Scotland. Ms Trainer submitted that

at the outset of the proceedings, the petitioner sought to underplay the nature of the first

respondent's relationship with the children and that position only changed when the first

respondent lodged productions demonstrating that the petitioner's position was not correct.

Ms Trainer made reference to 7/6 to 7/45 of process, being photographs of the first

respondent with the children on various occasions and flight information for the first

respondent's flights between Spain and Scotland. I accept that the petition and petitioner's

first affidavit in relation to the first respondent's interaction with the children are

inconsistent with productions lodged and the affidavits of the first respondent's mother and

sister and that this reflects adversely on the petitioner's credibility and reliability. I also note

that the third aspect of the petitioner's submission in connection with the first respondent's

conviction, namely the asserted causative link between the first respondent's behaviour and

limited contact with the children, is significantly undermined by his inaccurate presentation

of the extent of contact.

[41]

A similar concern also arises in relation to the petitioner's credibility and reliability

from the apparent absence of knowledge on the part of the first respondent of the Spanish

court proceedings. I will address the relevance of the Spanish Court orders to the question

of return below. The position of the first respondent, supported by her mother, is that she

did not receive intimation of the Spanish proceedings. Further, the translation of the

Spanish Court order lodged at 7/3 of process, page 3, records that the whereabouts of the

first respondent were unknown to the Spanish Court. That, according to Joaquin Delgado,

another Spanish lawyer, means the court was advised by the petitioner that the first

respondent's address was unknown. That would appear to be the case when the evidence

suggests the petitioner clearly knew where the first respondent was living throughout the

relevant period. This also appears to me to be consistent with, as Ms Trainer put it, the

petitioner presenting his case in a way that he deems would suit his position rather than

providing the court with a full and accurate account to allow the court to make a decision in

the best interests of the children and again reflects adversely on his credibility and

reliability.

[42]

In relation to the petitioner's submission regarding parental influence of the

children's views, as the reporter acknowledges, assessing the extent to which children's

views are independent of parental influence is not straightforward as there will always be

some degree of influence positive or negative, express or implied. Mr McAlpine submits

that, on the basis of the reporter's report, it is clear that the children have been exposed to

inappropriate information or discussion, citing a number of examples. I do not accept that

submission. In the first instance, the reporter is extremely experienced, was, and is, well

aware of the importance of influence in Hague Convention cases, she had copies of the

petition (as adjusted) and the petitioner's second affidavit, both of which put parental

influence in issue and she was expressly asked to report on whether, and if so, to what

extent, the children's views are independent of parental influence. The reporter was well

aware of the examples cited by Mr McAlpine. Indeed the examples cited by Mr McAlpine

appear to emanate from the reporter's report. Against that background, I have no doubt

that the reporter will have approached the issue of influence with great care and that her

experience will have equipped her to do so astutely. Having done so, the reporter

concluded that "focusing on their expressed view that they do not wish to return to Spain,

that does seem to me to be their own view." In addition, the matters raised and relied upon

by the petitioner to imply influence do not correlate to the reasons the children give for their

objection to return. Thus, even if, as the petitioner puts it "the children have been exposed

to information", I do not consider that that exposure has influenced the children's stated

reasons for objecting to return.

[43]

In terms of the nature of the children's respective objections, the reporter explored

these in detail with each child and I have set these out above at some length. I will not

repeat these in detail. The focus of both children's objection lie in their father's treatment of

them, their father's leaving them unaccompanied in the house, their own experience of their

father's drinking and driving, their being left with their paternal grandparents for significant

periods and their unhappiness at school. The reporter records that Charles "was certainly

expressing fear of a return to his father's care." Conversely, in Scotland, the children

articulated a better relationship with their mother and enjoying and having more friends at

school.

[44]

In terms of the strength of the children's respective objection, again, this was

comprehensively explored by the reporter and, again, I will not reiterate in detail what I set

out above. The reporter's report is striking in respect of her concern for Charles' wellbeing

from his presentation during her discussions with him. Charles reported self-harming as a

consequence of thoughts about possible return. When asked by the reporter if Charles felt it

important that the judge knew anything in particular, Charles said "I really, really, really,

really, really, really don't want to go back" and wanted the reporter to write in the report in

capitals "I REALLY DON'T WANT TO GO BACK TO SPAIN". From the above I infer

significant strength of objection on Charles' part and also a significant degree of concern for

his welfare should he be returned. The reporter's report suggests that James was less

forceful in the strength of his objection, albeit I note that James told the reporter that he

"hated" his new school in Spain.

[45]

In terms of the petitioner's submission in relation to the nature and strength of the

children's objection to return, I was left with the conclusion that the petitioner sought to

belittle the nature and strength of the objection, failing to properly address the substantive

elements. The petitioner, in his own submission, made reference to the children's own `lived

experience'. That, of course, is the only one they have and, whilst I would accept that there

ought to be a degree of objectivity on the part of the court reaching a judgment about the

factors relevant to the exercise of its discretion in relation to orders for return, in considering

the nature and strength of a child's objection, just as with a proper assessment of grave risk

under Article 13(b), the subjective, lived experience of the child is also relevant. It is on the

basis of the child's lived experience that the child chooses to object or not. Drawing the

above together, I accept that the children have identified reasonable and rational reasons for

their respective objections to return and that in James' case his objection is strong and in

Charles' case his objection is very strong.

[46]

Turning to the broader considerations regarding the children's education, home

environment and general welfare and wellbeing, both in Spain and in Scotland, subject to

what I have said elsewhere, and in particular in relation to the matters raised by the children

as underpinning their objections to return, which I accept, I accept much of what is said by

and on behalf of the petitioner about the general suitability or adequacy of the children's

accommodation and school, their involvement in extra-curricular activities and, to a lesser

extent, the stability of their lives in Spain. The first respondent accepted that there were

good times in Spain. The children do not paint a picture of a wholly unsuitable life in Spain.

The children's respective objections are made under reference to a number of specific

reasons as discussed above. In the absence of these objections it is not suggested that there

is something unsuitable or inadequate such that the children could not or should not be in

Spain. Beyond the petitioner's own affidavits, the affidavits lodged on his behalf are of little

material assistance. They confirm what the first respondent accepts as good times and the

practical arrangements in Spain but do not materially address the relevant issue before me,

not least the children's objections.

[47]

In relation to the children's school in Spain, Mr McAlpine made reference to 6/17 of

process, a letter from the Costa Blanca International College dated 14 February 2024. The

letter appears to have been prepared by the principal of the college in contemplation of

lodging in these proceedings and is, in part, reliant on misleading information provided by

the petitioner. For example in the first bullet point it records that the children are going to

Scotland to visit their grandparents and fails to mention their mother and that the children

did not return as a result of a decision taken unilaterally by the mother, which is inconsistent

with the evidence before me that I accept. It might be said that in informing the college as

he has, this is another example of the petitioner presenting his case in a way he might deem

best suits his needs. The second bullet point, which suggests that the children have adapted

and have made friends within their respective classes is at odds with what the children told

the reporter, who reports that the children do not like the school, have made few friends

there but had kept their feelings about this to themselves. Thereafter the letter states that the

petitioner has engaged well with the school. It is not, so far as I understand the submissions,

suggested that the petitioner does not engage with the children's school.

[48]

In relation to the children's school in Scotland, the first respondent had also lodged

email productions from the children's current schools, 7/4 and 7/5 of process, one for each

child. These similarly report that the children have settled well, made friends and that the

first respondent is engaging well with the school. The emails also record that the children

have reported to their teachers the reasons for their objections to returning the Spain.

[49]

On the basis of the evidence before me it would appear that the children's schools in

both Spain and Scotland are able to provide the children with a suitable learning

environment and that the parties are engaging appropriately with the schools. The

difference between the schools appears to the children's experience of the schools. They

both dislike the college in Spain and appear to have been significantly unhappy, making few

friends, whereas in Scotland they appear to be happy and have made more friends, all as set

out by the reporter.

[50]

Beyond school, Mr McAlpine made reference to a number of productions, including

photographs, showing that the children were involved in football and golf clubs in Spain

and enjoying other activities. I accept these at face value and, as noted above, it is not

disputed by the first respondent that there will be good times in Spain. However, they

portray only a few moments in time and do not speak meaningfully to the reasons the

children object to being returned to Spain. Accordingly, I find they have limited relevance.

[51]

Turning to the petitioner`s submission regarding the first respondent's "chaotic"

lifestyle in Scotland, the submission appears predicated on a number of factors. One factor

is the first respondent's `history of abusing drugs and alcohol' in support of which reference

is made to various affidavits and 6/55 of process. In relation to the affidavits, insofar as they

reference the first respondent's drinking alcohol and drug taking, they appear to me to relate

to a period some time ago and relate to different circumstances where it appears the parties'

relationship was under strain. In relation to the messages lodged at 6/55 of process, I note

what these state but also note that the messages are from June 2019. That is two and half

years before the parties separated and nearly five years ago from today's date. In the

absence of more current evidence it is difficult to see its relevance to a consideration of the

life style the children have in Scotland today.

[52]

I also note that there is no suggestion of concern arising from the first respondent's

behaviour from the limited social work records lodged in process (7/46 of process) or the

emails from the children's schools (7/4 and 7/5 of process).

[53]

In terms of accommodation in Scotland, although there appeared to be some

confusion about where the first respondent and children resided, Ms Trainer confirmed,

under reference to 7/46 of process, that the first respondent sought assistance from the local

authority with housing and that she was now on a list for allocation of accommodation for

herself and the children only. Ms Trainer also confirmed that on occasion the first

respondent would stay over at her partner's house together with the children.

[54]

Thus, in relation to broader considerations regarding the children's education, home

environment and general welfare and wellbeing, whilst, subject to what the children report

to the reporter as discussed above, I accept that the evidence suggests there are positive

elements to the children's general welfare in Spain but I reject the submission that the

evidence suggests that the children's life style in Scotland is chaotic. On my assessment of

the evidence before me, I find that the children's welfare and wellbeing are appropriately

well served in Scotland.

[55]

That brings me to the Spanish order of January 2023. Mr McAlpine submitted that

the order was particularly relevant and, irrespective of the dispute of whether the

respondent had been served with the Spanish proceedings, this court should, as a matter of

comity, respect the Spanish order and return the children. As I have said before, in W v A

the Inner House considered submissions regarding the emphasis that ought to be placed on

an order of the court of habitual residence in favour of the party seeking return. In response

to those submissions, at paragraph [10], the Inner House stated:

"The important point is that the Lord Ordinary required to carry out his own

assessment on the evidence before him, not simply enforce the Polish judgment. It

was an important part of the background circumstances, but not at the expense of

other material considerations."

[56]

Further, I acknowledge (i) that the Convention requires the swift return of children

to the jurisdiction of their habitual residence as being recognised, in the first instance, as the

proper place to make long terms decisions about their welfare, including residence, (ii) that

the Convention is born out of a comity between the contracting states and a mutual respect

for one another's judicial processes and (iii) that the Convention acts as a deterrence against

abduction in the first place. Standing the relatively short period the children have been out

of Spain, these factors, Mr McAlpine submitted, ought to be given substantial weight. I

accept the relevance of these considerations and I do weigh them in the balance,

acknowledging the shortness of time that the children have been out of Spain and that the

petitioner appears to have acted swiftly in reliance of the Convention in seeking return. It is,

however, also important to recognise, as Lady Hale made clear at paragraph 44 of In re M:

"As is clear from the earlier discussion, the Convention was the product of

prolonged discussions in which some careful balances were struck and fine

distinctions drawn. The underlying purpose is to protect the interests of children by

securing the swift return of those who have been wrongfully removed or retained.

The Convention itself has defined when a child must be returned and when she need

not be. Thereafter the weight to be given to Convention considerations and to the

interests of the child will vary enormously."

[57]

At paragraph 43 Lady Hale rejected the proposition that Convention objectives

"should always be given more weight than the other considerations. Sometimes they should

and sometimes they should not." And at paragraph 48 her Ladyship noted that "The

Convention itself contains a simple, sensible and carefully thought out balance between

various considerations." In addition, in W v A, at para [9] (cited above), Lord Malcolm

stated that:

"A child centric approach is required, with her interests and general welfare at the

forefront. The focus is not on the moral blameworthiness of the abducting parent,

nor on notions of deterrence."

In light of these dicta, it seems to me axiomatic that if a child-centric approach with the

child's interest and general welfare at the forefront suggests that the child should not be

returned, the "Convention considerations", including this court's approach to the order of

the Spanish court, must yield. It is also relevant, as Ms Trainer re-emphasised at the close of

her submission, in this case, and I find as a matter of fact that this is correct, it was not the

first respondent who initiated the retention of the children in Scotland. That was at the

instigation of the children, with the first respondent reacting accordingly. Accordingly,

irrespective of Lord Malcolm's emphasis, issues of moral blameworthiness and notions of

deterrence did not arise. I accept that submission.

[58]

Drawing all of the above together and considering the factors relevant to this

particular case, including the nature and strength of the children's objections, the extent to

which those objections are authentically the children's own objections or the product of the

influence of the first respondent, the broader considerations regarding the children's

education, home environment and their general welfare and the general Convention

considerations, taking, as I am required to do so, a child-centric approach, with the

children's interests and general welfare at the forefront, in light of the evidence before me, I

refuse to make an order for return of the children.

Scottish Court of Session Decisions