Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS AT EDINBURGH

 

[2016] SC EDIN 53

 

JUDGMENT OF SHERIFF WILLIAM HOLLIGAN

 

in the cause

A

 

Pursuer;

against

B

 

Defender;

 

 

Act: Erskine, MHD Law LLP

Alt:  Docwra, Morisons LLP

 

 

[This matter concerned, inter alia, the crave of the father/defender to take his children on regular visits to Algeria. The crave was opposed. The judgement in this matter has been redacted in order to protect the interests of the children].

 

 

….

[35]   One of the major issues in this matter concerns the wish of the defender to take both boys with him to visit Algeria.  The pursuer is concerned that, once in Algeria, the children will never return. The question then arises as to what prospect of success the pursuer would have in taking legal proceedings in Algeria to secure the return of the children?  In this report I heard the evidence from an expert witness, Dr Abdelaziz Lahouasnia LLM, MA, PhD, Avocat (Algeria) and Legal Consultant.  Dr Lahouasnia prepared an opinion (“the opinion”) which is 5/12/1 of process.  Annexed to that report are certain appendices; separately, the pursuer lodged extracts from the Algerian Family Code.  Quite correctly, no issue was taken as to the expertise of Dr Lahouasnia to give evidence as to the law of Algeria.  Dr Lahouasnia practices law in Algeria, particularly in matters in which there are British interests.  He also acts as a legal consultant in the United Kingdom, including immigration matters.  He has acted as an expert witness in a number of cases.  He has practised in Algeria in the field of family law.  I accept him as an expert witness.  The question of Algerian law is clearly very relevant to this matter.  Somewhat obviously, it would not be possible to deal with matters of Algerian law without expert evidence.

[36]   In accordance with his instructions, Dr Lahouasnia considered matters from the perspective of Algerian law.  Algeria is not a party to the Hague Convention relating to the abduction of children.  The principal source of Algerian law in this matter is the Algerian Family Law Code (“AFLC”) which came into force in 1984 and has subsequently been amended.  As I understand it, much of the inspiration for the AFLC comes from Islamic law and in the event that the AFLC does not provide a clear cut answer, reference may be made to older texts.  Algerian law does not recognise separation of parties as having legal consequences in itself: either parties are married or they are divorced (paragraph 4.1 of the opinion).  In the present case, the parties are separated but they are not divorced.  In paragraph 4.2 of the opinion, Dr Lahouasnia sets out the respective rights of married parties in relation to children.  So long as the parties are married it is the tuteur or guardian of the children who exercises guardianship of the children.  Under the AFLC, the defender is the head of the family.  He is responsible for providing for the children, their upbringing and so forth.  It follows (paragraph 36) that, so long as the marriage subsists, should the defender wish to relocate to Algeria with a view to providing a Moslem upbringing, that is something he is entitled to do.  In order to travel abroad, a person under nineteen requires Authorisation Paternelle (authorisation from the father) to do so.  Although the pursuer would have the right to apply to a tribunal for permission to travel to Scotland on the basis that it is the usual place of residence of the children, in Dr Lahouasnia’s opinion it is not realistic to expect the tribunal to give its consent, given that parties are still married to each other.  In the course of his evidence he confirmed the position of the father: he retains guardianship; if he wishes to relocate to Algeria he is able to stay there if he wishes; it would be “very very difficult” for the pursuer to get the children back; legal proceedings might take years; if the father wishes the children brought up in an Islamic environment any judge would have a preference towards such a view (pages 45-46 of the transcript).  There is a further complication.  It is possible that the pursuer’s failure to live with the defender would be described as desertion and that has criminal sanctions for her (paragraph 4.3 of the opinion; article 330(1) of the Algerian Criminal Law Code).  In the case of divorce, boys should remain with the mother until the age of ten, after which they normally go to live with their father.  So far as legal proceedings in Algeria are concerned, there are opportunities for delays. If the pursuer wanted to bring proceedings to secure the return of the children she would need to go to Algeria to do so (pages 49 and 50).

[37]   In the course of the opinion, Dr Lahouasnia set out a number of possibilities which might assist the pursuer in securing the return of the children.  I need only refer to those upon which he was cross-examined (see pages 52-55).  (The relevant parts of his opinion are to be found on pages 19-24).  In particular, Dr Lahouasnia was asked about the effect of an undertaking by the defender to return to Scotland including a statement that Scotland is agreed to be the best place for the children to reside.  A further step which would help the pursuer’s position is for a Scottish court to make an order (akin to what I think Dr Lahouasnia described as a prohibited steps order in England – the transcript, I suspect, is wrong in describing it as a “private step order”), requiring the children to be brought back to Scotland at the end of the holiday (pages 54-55, paragraph 4.7.3).  Dr Lahouasnia stated that none of these measures would guarantee return.  In the case of a prohibited steps order, its enforcement in Algeria would be through a process known as exequatur and that applies only to final, not interim orders.  Any order by a Scottish court at that stage would be regarded as an interim order.  Furthermore, any foreign order may only be enforced in Algeria if the order is not contrary to public order in Algeria or an infringement of national sovereignty.  The latter principle is one which is jealously guarded by the Algerian courts (paragraphs 73 and 74 of the opinion; pages 55 and 57 of the transcript).  It is a fair summary of Dr Lahouasnia’s evidence that the five steps which could be taken by the pursuer do not guarantee any success and, in general, even in the event of divorce, which would give to the mother certain rights, an Algerian judge would be unlikely to order the return of the children to Scotland when they are living in Algeria and the Algerian father wants them to remain there (page 57).  That is one reason why Algeria has not signed the Hague Convention.  Dr Lahouasnia concluded his opinion as follows:-

“The pursuer would be facing considerable difficulties to guarantee the return of children from Algeria should the defender relocates (sic) to Algeria and remains (sic) the pursuer’s husband.  In such circumstances, he would retain full guardianship of his children while in Algeria” (Paragraph 78).

 

[38]      Dr Lahouasnia was able to assist in relation to the significance of 6/3/1 and 6/3/2 of process.  Put broadly, these are copies of documents issued by the Algerian Consulate registering the births of AM and AR.  AM was registered on 26 June 2014 (well after separation); AR on 6 July 2010.  The pursuer has harboured suspicions that the documents might be used by the defender to assist him in going to Algeria.  It appears that in the case of AR the pursuer knew of the registration and had no objection at the time.  The registration took place prior to the visit to Algeria.  At pages 58 to 62 of the transcript, Dr Lahouasnia set out the position in relation to these documents.  In short, the documents are not in themselves of particular significance and are purely an administrative process.  They do not of themselves confer Algerian citizenship; that is determined by the residency of the parents  (see paragraph 77).

[39]      Finally Dr Lahouasnia was asked about the safety of travellers in Algeria.  I am not sure it is entirely fair to take too much from Dr Lahouasnia’s evidence as it is not something which is within his expertise as an expert witness on legal matters.  However, having been asked, Dr Lahouasnia annexed to his opinion an extract from the advice to travel as issued by the Foreign and Commonwealth Office.  Put shortly, Algiers is regarded as the safest part of Algeria.  The advice is directed towards UK travellers and not to those who hold dual nationality.  Dr Lahouasnia and his family are regular visitors to Algiers.

 

Submissions for the pursuer

[40]      Ms Erskine lodged written submissions extending to some 30 pages.  It is not my intention to set these out in detail, particularly in relation to the evidence.  I summarise the main elements as follows.

[41]      … One of the principal issues relates to the defender’s second crave in which he seeks a specific issue order allowing him to travel with the children to Algiers for the purpose of holidays.  Ms Erskine referred to the Children (Scotland) Act 1995 (“the 1995 Act”) and in particular, section 11.  Any order made in relation to a specific issue as provided for in section 11(2)(e) must, in turn, relate back to section 11(7)(a) and (b) which relate to parental rights and responsibilities.  In determining the matter the court should regard the welfare of the child as its paramount consideration.  Ms Erskine also referred to the no order principle.  In this case, the children are too young to be able to express a view. (I will refer to the specific statutory provisions later.)

[42]      In relation to the specific issue order (relating to temporary absence abroad) Ms Erskine had been unable to find any Scottish authority dealing directly with the matter.  She referred me to four English authorities: C and K [2014] EWHC 4125 Fam; Re R (a child) [2013] EWCA Civ 1115; In the matter of M (a child) [2010] EWCA Civ 888; and Re K (Removal From the Jurisdiction: Practice) [1999] 2FLR 1084.  In C and K expert evidence was given by Dr Lahouasnia.  In the course of his judgment in C and K, at paragraph[20], Cobb J quoted, with approval, from the judgement of Patten LJ in Re R in which, at paragraph [23]  Patten LJ said that when considering matters such as the present, the court should have regard to: (1) whether it is in the best interests of the child; (2) whether the advantages outweigh the risks to the child’s welfare; (3) any safeguards to minimise the risk of retention must be capable of having real and tangible effect in the jurisdiction they are to operate in and be capable of being easily accessed by the UK based parent; (4) in most cases there is a need for effectiveness of any suggested safeguard to be established by competent expert evidence; (5) if in doubt the court should err on the side of caution and refuse to make the order.  Cobb J also referred to a further three elements in particular: (1) the magnitude of the risk of breach of the order if permission is given; (2) the magnitude of the consequence of breach if it occurs; (3) the level of security that may be achieved if safeguards are put in place.  In Ms Erskine’s submission, the four judgments of the English courts referred to set out a well-considered and helpful approach which I ought to follow when considering the defender’s crave for a specific issue or order. I will return to these in more detail.

[43]      …  It was accepted that the children would benefit from experiencing the culture of both France and Algeria.  The English cases acknowledge the significance of such benefit.  However, the consequence of granting this specific issue order in favour of the defender is that the pursuer might never see the children again.  ….  Algeria is not a party to the Hague Convention and that is a very important factor.  The pursuer was not allowed to go out into Algiers on her own when she was there in 2010 which suggested that it was not a safe location.  …Ms Erskine was aware that Mr Docwra intended to rely upon M v K 2015 SLT 469.  That was a very different case.  The relationship between the parties is currently very poor.  Ms Erskine went on to analyse the evidence in detail which, as I have said, I do not intend to record here.  In summary, and applying the approach of the English courts, it would not be in the children’s best interests to grant to the specific issue order sought by the defender.  The risk would be considerable.  There appear to be no safeguards which can be given by the defender which would have a real and tangible effect in Algeria, nor could they be accessed by the pursuer.  Also the pursuer’s experience of Algeria caused her to give evidence that on her return she decided she would never go back.  Dr Lahouasnia is an expert witness.  His conclusions about the prospects of an Algerian court making an order requiring the father to return the children (page 57) are of importance.  In the event that I do not follow the English authorities, I should find the pursuer is reasonably and justifiably fearful and apprehensive that, if taken to Algeria, the children would not return. I should therefore grant a perpetual interdict in terms of crave three, refuse the crave for the specific issue order and grant a residence order.  Contact should be limited to the text of the defender’s present crave. There should not be holiday contact as the pursuer continues to… fear he may take [the children] to Algeria.

 

Submissions for the defender

[44]      Like Ms Erskine, Mr Docwra lodged detailed written submissions, also running to just short of 30 pages.  Again, it is not my intention to record all that is set out in the submissions.  ….The defender also seeks a specific issue order allowing him to take his two sons on a holiday to Algiers, extending to two weeks on an annual basis.  Mr Docwra submitted it was necessary for the defender to prove that the contact he seeks is beneficial to both his sons.  He also requires to prove to the court that he will not seek to retain his sons in Algiers following upon a permitted period of holiday contact in Algeria and that Algeria is a safe holiday destination for the boys.  The events in the past have very little relevance to the present save and except that they indicate how parties may behave in the future.  Like Ms Erskine, Mr Docwra submitted that the making of the specific issue order must relate to parental rights and responsibilities as they are set out in the 1995 Act.  In more detail, section 11(1)(a), relating to the responsibility to safeguard and promote the child’s health, development and welfare is relevant because of the benefit that the children will derive from learning about their Algerian culture and heritage, together with time with their extended parental family.  Mr Docwra relied upon sections 1(1)(b) and 1(1)(c); a visit to Algeria fulfils a responsibility to offer guidance and direction to the children; holiday contact is part of maintaining personal relations.  Mr Docwra referred to section 2(1)(c) as a foundation for the making of a specific issue order.  Mr Docwra also referred to article 8 of the European Convention on Human Rights and the Human Rights Act 1998.  In short, the defender and both boys have a right to a family life together and he submitted that part of family life is firstly, enjoying contact of sufficient duration and quality to allow a normal family life and, secondly, taking the children on holiday; introducing them to the children’s close and extended family; and allowing children to experience the origins and culture of one of their parents.  In that context Mr Docwra referred to M v K.  One of the questions is whether it is necessary to restrict the defender’s contact.  Necessity was the test. …It was not necessary to do so.  Furthermore, any order in the present process will have the character of a permanent order (see M v K).  It would be almost impossible to reopen the matter and argue that there has been a change of circumstances.  If the defender was not correct in relation to the application of the necessity test, the defender’s secondary position is that, on the application of the welfare principle, it is in the best interests of both boys to have alternate weekends of contact with the defender along with holiday contact in Algiers.  It is also better that these orders be made than not be made.  Mr Docwra then went through the evidence in detail which I will not record here.  In relation to the evidence of Dr Lahouasnia, the defender does not take issue with his exposition of the law of Algeria.  He accepts that, because the parties are not divorced, it would be extremely difficult for the pursuer to recover the boys from Algeria.  However, that is irrelevant because that is not the defender’s intention.  Dr Lahouasnia’s evidence in relation to the registration of the births of the boys with the Algerian Consulate is significant because it establishes that this documentation does not give the boys the right of residence in Algeria.  Dr Lahouasnia’s evidence as to the safety, or comparative safety, of Algeria is of assistance.  …Mr Docwra invited me not to follow the English authorities referred to by Ms Erskine, or their reasoning.  In particular, parts (3) to (5) of the tests set out by Cobb J are of concern.  On one view these tests go further than is necessary.  If the court is content that the defender does not propose to retain the children in Algeria, that the visit will benefit them, that it is safe, that is as far as it is necessary to go.  Hypothetically, even in the case of a perfect parent, tests (3) to (5) set out by Cobb J, might still inhibit the granting of an order.  That is not sound.

[45]      Both agents agreed that there should be no order for expenses.

 

Decision

[46]      Before I turn to the legal issues I shall draw together some of my conclusions on the evidence…..

[48]      The relevant statutory framework is to be found in certain provisions of the 1995 Act:-

“Section 2(3)

Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child out with, the United Kingdom, without the consent of a person prescribed...

…

Section 11(1)

In the relevant circumstances in proceedings in the … sheriff court … an order may be made under this subsection in relation to –

(a) parental responsibilities;

(b) parental rights;

…

Section 11(2)

The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders –

…

(e) an order regulating any specific question which has arisen, or may arise in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as “specific issue order”);

(f) an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child…”

 

Section 11(7)

“…in considering whether or not to make an order… the court –

1. shall regard the welfare of the child concerned as its paramount consideration and shall not make an order unless it considers that it would be better for the child that the order be made than that none should be made at all…”

 

[49]      I shall refer to the provisions in section 11(7) I have set out above as being the “welfare principle” and the “no order principle”. Section 11(7)(b) makes reference to the views of the children. Given their ages both agents agreed, correctly in my view, that the children are too young to express a view. I start by dealing with crave two for the defender in which he seeks permission to travel to Algiers.  His intention is to have this facility not just for a single holiday but for holidays in the future.  The English authorities refer to such applications as “temporary relocation” and I shall adopt that terminology here.  Relocation, temporary or otherwise, is not something specifically addressed by name in the 1995 Act.  The concept requires to be fitted into the existing statutory provisions. It is important to note that I am dealing with temporary relocation to a non-Hague Convention country.  The starting point is section 2(3) which prevents one parent from removing a child out of the United Kingdom without the consent of the other.  Both parties have parental rights and responsibilities and each may exercise the responsibilities without the consent of the other (see section 2(2)).  Section 2(3) is the exception. They cannot and do not agree as to the temporary relocation. There is therefore a “specific issue” between the parties within the meaning of section 11(2)(e) which, in turn, refers back to section 11(1)(a) and (b) - I am not concerned with paragraphs (c) or (d).  I have included in my outline of the legislation section 11(2)(f) which, in some respects, is closely connected to section 11(2)(e) in that it relates to an interdict, not to prevent a wrong , immediate or apprehended, but in relation to the fulfilment or exercise of parental responsibilities and rights.  In my opinion, the power to make a specific issue order must relate to a parental right and responsibility. That is why I asked agents to address me on that point. It is what the statute requires.  The provisions in section 11(7) give directions to the court as to certain matters (and their weight) to which the court must have regard in dealing with the issue.  In the present case, correctly in my view, Mr Docwra pointed to the implications for the children of visits to Algiers.  This is not simply the case of a family holiday.  There are clearly cultural, familial and geographical issues at play which, in the context of this family, can be seen as part of the development and welfare of the children; visits of this sort are very much aspects of a parental right and responsibility as to direction and guidance.

[50]      I turn now to the question of the use of English authorities.  I am grateful to Ms Erskine for her very careful and thorough reference to these authorities. In my opinion, it is helpful to consider English authorities.  Somewhat obviously, the English jurisdiction is much larger than our own; it has specialist family courts and family judges.  Reading the cases referred to has been informative.  There is much to be learned from the management of similar issues in other jurisdictions.  However, there are certain practical limitations.  Although similar, the English statutory framework is not identical to that in Scotland and English procedure is very different from our own.  The cases referred to do not spell out in detail the statutory provisions lying behind the exercise of the jurisdiction.  In the four authorities referred to, the starting point is In re K , followed by Re R, leading Cobb J to synthesise both in paragraphs [20] and [21] of his judgment in C and K. With the benefit of experience, the English courts have refined their approach.  I am reluctant to apply wholesale into Scots law whatever may be, in effect, a snapshot of English law at a particular time.  However, as I have said, I do derive benefit from the experience of that jurisdiction.  In particular, I note that applications of the present type are taken very seriously in England.  The courts demand careful and adequate preparation in relation to each application (that is not an issue here).  Also, simple reliance upon the say so of what I will describe as the visiting parent is rarely regarded as being sufficient. Accordingly I do not agree with Mr Docwra that I should not have regard to the English authorities. The case of M v K to which Mr Docwra referred was a case in relation to contact. On its facts it is distinguishable from the present case: it did not concern relocation; unlike the present case, the father was refused any direct contact. In the course of his opinion, Lord Eassie referred to “necessity” and contact. As I understood him, Mr Docwra was of the view that contact should only be limited where it is necessary to do so. However, in my opinion Lord Eassie’s comments need to be read in context and particularly by reference to White v White 2001 SC 689. In the course of my judgement in HTJH v FM, unreported, 1 December 2015 I set out my conclusions as to M v K:

“[27]    It seems to me that the interlocutor I pronounce on the issue of contact, whether it be making, or refusing to make, an order for contact is a “measure” to which the European Court referred in Elsholz. That said, Convention rights are not free standing in the sense that they are given effect to, either by the court interpreting the relevant domestic statutory provision in accordance with Convention or by the court, as a public authority, acting in accordance with the Convention. White decided that the structure of the 1995 Act is compatible with the Convention (so much was also conceded in the case of JM).  The issue here is the decision on the merits. Domestic law requires that in reaching its conclusion the court must regard as its paramount consideration the welfare of the child.  The court must also make its decision by reference to the provisions of article 8.   It seems to me that, however one chooses to formulate it, the starting point, both from the perspective of domestic law and article 8, is that there is a general assumption that there ought to be contact between a parent and a child.  A refusal by the court to grant contact to a father who seeks such an order will constitute interference with the right to a family life.  The authorities seem to accept that a decision made by the court is in accordance with the law and has a legitimate aim.  The key provision, referred to in JM, is whether the measure is “necessary in a democratic society”.  As I read both White and Elsholz, the parent’s right is not absolute; a fair balance must be struck between the interests of the child and those of the parent and in so doing particular importance must be attached to the best interests of the child.  Putting the matter another way, where a father pursues a claim for contact with a child, the starting point may well be an assumption that he ought to have contact but any decision by the court must involve an examination of all the relevant material and a judgement as to the best interests of the child.  I consider that there is little substantive difference between section 11(7) and article 8 in prescribing consideration of the interests of the child.  It seems to me that, read in the wider legal context, JM is a case confined to its facts.  As I have said the Inner House described the relationship in that case between the father and child in positive and continuing terms.  It was not satisfied with the decision of the sheriff and the sheriff principal in deciding not to award contact.  I can see that in such circumstances, as a matter of fact rather than as a matter of law, there may require to be good reasons for not ordering contact and that an apparent failure to do so (as in Elsholz) might constitute an infringement of article 8.  However, consistent with the authorities, I do not read JM as setting a separate test of necessity as a basis for refusing contact.  The issue is one of balancing interests, with particular regard for those of the child and giving adequate reasons for the decision.  Indeed, in White the Lord President stated that the sheriff had gone too far when he said “only the strongest competing disadvantages will be likely to prevail to establish that the welfare of the child would not be served by allowing contact with the parent” (paragraph [26]).  The factual circumstances in contact cases vary very widely.  At the heart of the issue lies an examination of the balance of interests between parent and child in the factual context.  Some cases involve an application for contact against a background of an existing relationship; others may involve none whatsoever.  Where there is an existing relationship the reasons for not allowing contact may require to be more persuasive than where there is no existing relationship.  So much is really a qualitative exercise in the examination of the reasoning.”

 

Accordingly, I am not inclined to read “necessity” in the way in which I understood Mr Docwra to mean. Given what I have said in relation to the defender’s position as to non- foreign contact I do not see that the issue arises on that point. The issue of temporary relocation does not sit easily with what I might call domestic contact which involves no foreign element. It is the foreign element and the risks associated therewith which put temporary relocation into a category of its own, requiring practices adapted to address the challenges which such issues create.

[51]      There appears to be no available reported Scottish authority on temporary relocation. Drawing on the practical experience of the English courts, together with my experience in this court, and applying the relevant statutory provisions I deal with the matter as follows.

(a)     If the crave (or motion) for temporary relocation is opposed then the starting point is an analysis of the current arrangements for the child.  In Re K, Thorpe LJ referred to “breach of an order” by which he meant breach of an existing order in favour of the resident parent - in that case there was an order for contact in favour of the resident parent which would be rendered unenforceable by continued residence furth of the jurisdiction.  In my opinion, one does not necessarily need an order of the court.  For example, as in the present case, up to now there has been no residence order but, as a matter of fact, the children currently reside with the pursuer and have always done so. Extended relocation would defeat that status quo.

(b)     There may also be an issue as to whether the proposed temporary relocation and its duration constitutes a major departure from the contact the visiting parent currently enjoys to the extent that it may be an issue for the child.

(c)     I have explained why, in my opinion, parental rights and responsibilities are engaged in temporary relocation. There needs to be a careful analysis as to how the child will benefit from the temporary relocation. I do not consider there is an assumption or presumption that there will be such a benefit. It is for the visiting parent to establish the benefit. The welfare test is, at this stage, significant although I do not say that the welfare test is limited to any particular point in the decision making process: it is an overarching principle to be applied.

(d)     There should be full disclosure to the resident parent by the visiting parent of all travel plans and documents so that the resident parent is aware of what is intended. There may also be issues as to the release and holding of passports before and after the visit.

(e)     Is there a risk that the child will not be returned by the visiting parent?

(f)      If there is such a risk, can it be addressed by real and adequate safeguards, easily and affordably accessible to the absent parent?  When assessing the adequacy of these safeguards, regard has to be paid to their likely effectiveness in the jurisdiction to be visited.  If there is any doubt, then expert evidence may be required.  The English authorities make reference to mirror orders and notarised agreements.  As I understand it, a mirror order is an order from a court in the jurisdiction to be visited which recognises and protects the interests of the absent parent already enshrined in an order of a court in this jurisdiction.  A notarised agreement is an agreement whereby the visiting parent agrees in advance certain matters relating to the child.  It is essential that the notarised agreement is capable of enforcement in the jurisdiction to be visited. I have to say that I have not come across mirror orders or notarised agreements in this jurisdiction but I suspect that is because the issue has never been raised rather than because of any fundamental difference from procedure in England. I do not say that mirror orders and notarised agreements are required in every case but if there is a risk they are mechanisms which may address the issue.

(g)     In deciding overall risk, evaluation of the intentions of the visiting parent is not sufficient in itself.  I note that the English courts require evidence to be given by the visiting parent so the court can include an assessment of the witness in its decision making process. All relevant material needs to be considered.  If it is in doubt, the court should refuse the order.

 

[52]      If I apply that analysis to the present case: (a) and (b) The children ordinarily reside with the pursuer and continued retention of the children in Algeria would interfere with that status quo.  The defender has had regular contact. The duration of proposed visits is two weeks which, having regard to existing contact, is not lengthy. (c) A visit, and indeed repeated visits, to Algeria do engage parental rights and responsibilities.  The pursuer quite fairly conceded that there are many cultural, familial and other benefits which would be derived by the children visiting Algeria.  (See also paragraph [25] of Cobb J in C and K.) The same can be said in relation to the pursuer’s visits to France.  (d) Not currently an issue. (e) and (g) There is a risk that the children may not be returned.  Whatever the defender may currently say, one must consider future intention, at the point of which the children are in Algeria, and not just present intention.  I have already set out at length my assessment of the defender and I incorporate that assessment in this aspect of my decision.  My concerns are that, once in Algeria, particularly armed with the knowledge of how difficult it would be for the pursuer to invoke the aid of the Algerian courts, the defender may well give in to temptation and decide to remain in Algeria.  It is not difficult to anticipate how a wearily resigned acceptance of leaden skies in Scotland may dissolve under the solvent of a benign climate and the warm embrace of a once distant family.  I accept that, in his evidence, the defender said he regards himself as settled in this country; he regards the health and educational systems in Scotland as being far superior to those in Algeria; and that he himself has been resident in Scotland for some time.  However, overall, I am not persuaded that there is not a risk. Had it been necessary, I would have held that Algeria is a safe location. It may be that some caution is required but perhaps no more than any other location….there is the evidence of Dr Lahouasnia; and the material from the Foreign and Commonwealth Office. (f) I need not rehearse the evidence of Dr Lahouasnia.  His evidence is unchallenged.  In short, there are simply no adequate safeguards available to the pursuer in Algeria which would come anywhere near protecting her position.  The highest that can be said is that undertakings might improve her prospects but even so, it did not seem to me that it is an adequate answer to the risks that are present.  There is no possibility of alternative procedures by way of mirror orders or notarised agreements having any real effect. Accordingly, balancing up all of the factors as best I can, I am not inclined to grant the defender’s second crave.  That is not to say that the matter is permanently closed.  Whereas I do not invite further proceedings on a matter already determined, as the children grow much older it may be possible to review matters.

[53]      That leaves me with the question of the defender’s motion for extended contact….