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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v. Thomson, [2003] ScotCS 263 (15 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/263.html Cite as: [2003] ScotCS 263 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Cameron of Lochbroom
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P340/03 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION in PETITION of K.T. Petitioner and Respondent; against J.T. Respondent and Reclaimer; _______ |
Act: Dowdalls; Morton Fraser (Petitioner and Respondent)
Alt: Davie; Drummond Miller (Respondent and Reclaimer)
15 October 2003
[1] This is a reclaiming motion against an order made under the Child Abduction and Custody Act 1985 for the return of children to the jurisdiction of the Federal Court of Western Australia. The petitioner sought the return of two children whom the respondent removed from Western Australia in September 2002. The respondent pleaded in response that the petitioner had consented to their removal. The Lord Ordinary pronounced the order after hearing the evidence of the petitioner and the respondent and having considered the terms of certain affidavits which had been submitted on behalf of each of them. [2] As is narrated in the Lord Ordinary's Opinion, the petitioner and the respondent, who are Australian and British citizens, went together from Scotland to Australia in about 1993 and lived there together. In January 1995 they were married. Initially they lived at Karratha, which is in the tropical region of Western Australia. Thereafter they moved south to live in Geralton. The children of the marriage, GDT and KAT, to whom the petition relates, were born in Australia on 27 December 1996 and 29 September 1998 respectively. [3] The respondent, who is a nurse, does not appear to have settled to life in Australia. She came back to Scotland in 1996 for a wedding; for three months in 1997; and again in December 1998 for almost five months. By this time the marriage was unhappy. The petitioner, who is a manager of a mental health service, was studying for degrees and engaged in other activities away from home. The respondent mentioned within the family that she hoped to return permanently to Scotland. At the time of her return to Scotland in 1998 she telephoned the petitioner to say that she was not coming back. However, he came to Scotland and persuaded her to come back to Australia. [4] In March 2001 the respondent again came to Scotland with the children for six weeks. This unsettled her when she returned to Australia. The petitioner continued to be often away from home, and had to attend conferences all over Western Australia. When the petitioner and respondent were at home the subject of returning to Scotland was often discussed, but inconclusively. The marriage deteriorated. By the end of 2001 the parties had ceased to sleep together and have sexual relations. They discussed separation. One option was for the respondent and the children to go to live in Perth at the home of the petitioner's sister. Another was for them to live with a friend in Albany. This would have involved financial problems. [5] In 2002 the respondent planned a further trip to Scotland for a wedding at which the younger child would be a flower girl. Initially the petitioner was not happy about this, but then agreed to the trip. In April 2002 the respondent booked return flights on an open ticket for herself and the children. The date of return was 28 October 2002. In about July this was altered to a date in January 2003. The respondent's brother paid the fare of £2,000. After the flight to Scotland had been booked, the marriage deteriorated further, and the parties seldom discussed the trip. The respondent said in evidence that attempts to discuss it led to problems, and neither party wanted it to affect the children. [6] In about May 2002 the respondent said to the petitioner on one occasion that she was going to stay in Scotland and look for work. The petitioner responded that if that was what she needed to do to be happy, he understood. The Lord Ordinary states in his Opinion that he was satisfied that in her own mind the respondent intended to leave in September with the children and not return unless once she was in Scotland, she was unable to support herself and get accommodation. Her feelings were inevitably mixed as she felt sorry for the petitioner. [7] The petitioner said in evidence that, while he thought that his wife might stay, she had spoken this way before and had always returned. This time he was aware that she had taken no practical steps to pack, settle arrangements or the like. In his own mind the petitioner was uncertain and from what the respondent said to him he thought that she herself was unclear as to what was to happen. He said that any consent he gave was to the trip as a holiday for all three. In this connection it may be noted that the Lord Ordinary records that the petitioner was aware that the respondent had sent some of her CDs and sweaters to Scotland and had closed one bank account. However, she had left open another one for her salary. She did not resign her employment, and she enrolled the children for school in Australia in January 2003. There was a discussion between the parties about the mortgage. The petitioner asked the respondent to sign it over to him but as she was a co-owner she refused. He said that he only did so to "test her veracity". [8] After the respondent had arrived in Scotland the petitioner telephoned her. She said in evidence that he asked her "if" she was coming back. The petitioner said that he asked her "when" she was coming back. The Lord Ordinary states in his Opinion that he could not resolve this conflict, but took the view that in the circumstances it was unimportant. In October the petitioner took legal advice, and on 12 November his solicitors wrote to the respondent stating that he was seeking the return of the children in reliance on the Hague Convention. The letter also stated that the petitioner's position was that the only consent which he had given was to a holiday. The children live with the respondent in Stornoway. The petitioner continues to live in Geralton. [9] It is not in dispute that by the law of Australia the petitioner and the respondent had equal rights of custody in regard to the children, and that at the time of their removal from Western Australia the petitioner was exercising those rights. [10] The conclusions reached by the Lord Ordinary are set out in paragraph 23 of his Opinion, in which he states:"Based upon what is mostly not in dispute and the few areas of dispute, I am firmly of the opinion that at no time did the petitioner consent to the removal of his children within the meaning of Article 13. The respondent has not discharged the onus upon her to prove the matter in a clear and cogent way and at best for her I am left in a position of uncertainty. She had gone before and returned and this time took no steps to finalise her affairs or those relating to her employment or schooling. No sinister motive was suggested for these contra-indications and in my opinion the petitioner was right to conclude, no matter what the respondent said, that she would return in January. In these circumstances he cannot be criticised for letting her go to the wedding in September. His opinion is supported by the prompt action he took some weeks later when he found out the true position."
"I knew there was a risk she may have done that, given that she had done it before but until I got that phone call, that's when I knew she definitely wasn't coming back" (272).
"She left everything open-ended if things did not work out in Stornoway, so, you know, there was too many variables. I could not make a decision based on the indecision of my own wife" (284).
He said that she knew that he wanted her to come back (271, 291). He did not say she could stay in Scotland "because it was so indecisive". He told her that he did not want her to stay in Scotland (291). He said:
"I felt I had to wait and see what was her final decision before I could make any commitment to what I could do, because, again, there were so many uncertainties, I felt. I thought, 'How can you make a concrete decision when you don't know what the factors are?'" (328-329).
He could not consent to anything else than the respondent returning to Scotland on holiday
"because I did not know what else was going to happen. It was unclear. Even my wife I think was unclear. She stated herself that if things hadn't worked out, she was going to return. Until I knew she wasn't going to return, I didn't feel I was in a position to take any action" (330).
"The mother says that when she decided that she wanted to go back to England with her parents she had a long discussion with the father in the back yard. She explained how unhappy she was and said, in effect, that she wanted to have a breathing space to sort her feelings out. She made it clear that there was only a 50/50 chance that she would come back because that was how she was feeling at the time. She says that the father agreed to her taking C. She also says that she asked him whether, if she did decide to stay here, she could keep C. and she says that he agreed. She says that they also had a discussion about contact and he said that he did not wish to be a part-time dad and that she should tell C. that he was dead when she was of an age to ask. The mother also says that having had that discussion she gave up her job the day before she left and it was not kept open for her.
She had not finally decided when she did leave. Return tickets were purchased because the father said that would be cheaper. She made up her mind when she was here. She told the father on the telephone on 1 November 1996. The father was upset and asked her to think again and she rang again the next day, the 2nd, and confirmed her decision. She says that the father telephoned at least four times and, in effect, he was pressing for her to go back to have the matter dealt with in Texas ... ".
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Cameron of Lochbroom
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P340/03 OPINION OF LORD MARNOCH in RECLAIMING MOTION in PETITION of KT Petitioner and Respondent; against JT Respondent and Reclaimer; _______ |
Act: Dowdalls; Morton Fraser (Petitioner and Respondent)
Alt: Davie; Drummond Miller (Respondent and Reclaimer)
15 October 2003
[35] I am indebted to your Lordship in the Chair for his summary of the Lord Ordinary's Opinion and for setting out so clearly the salient facts of this case. [36] I should state at the outset that I have some sympathy with the Lord Ordinary in that, as it seems to me, the true issue in the case was repeatedly obscured by the approach and argument advanced on behalf of the petitioner to the effect that there could be no clear consent under the Hague Convention unless the future plans to which the putative consent related were themselves clear and unambiguous. As your Lordship has made clear, however, it is perfectly possible to consent unambiguously to an uncertain future which includes the possibility of the other parent remaining abroad with the child or children of the marriage indefinitely. To the authorities cited by your Lordship I would add the decision of the Extra Division in Zenel v Haddow 1993 S.C. 612. In the result, I respectfully agree with your Lordship's analysis of how consent can be shown to have been given by the petitioner in the circumstances of the present case. [37] As regards the exercise of the court's discretion in a situation where consent has been given to the removal of the child or children, I confess that I have encountered perhaps rather more difficulty than your Lordship in the Chair. [38] In the first place, I remain puzzled by what Wall J. in re M described as the "conundrum" posed by the inter-relationship of Articles 3, 12 and 13 of the Convention. Article 3 would suggest that the Convention is concerned only with removals in breach of custody rights and thus with removals other than with the consent of the other parent. Articles 12 and 13, on the other hand, pre-suppose that such removals are still somehow "wrongful" and, even in the presence of consent, require the court to return the child unless, in the exercise of some discretion, it decides not to do so. [39] The prevailing view - from which we were not invited to dissent - is that, insofar as there is a conflict, Articles 12 and 13 should take precedence over Article 3. That, however, can only be on the basis that the objects of the Convention extend further than dealing merely with the sort of child abduction envisaged by Article 3. My difficulty lies in identifying how much further these objects do extend and, in light of that uncertainty, in deciding what significance should be attached to the existence of consent in the exercise of the discretion in question. It is difficult to see, for instance, how the existence or otherwise of consent can impinge directly on the welfare of the child. In any event, from the wording of Articles 12 and 13 it does seem to me clear that, even where the removal has been by consent, the initial presumption is still in favour of return of the child. [40] It will be apparent from the above that I have not found it easy to follow the reasoning of Hale J. in the passage in Re K which has been referred to by your Lordship. Nonetheless, I am indebted to her for identifying what I consider to be at least two legitimate considerations in the exercise of the discretion in question, namely the most appropriate forum, in terms of availability of evidence and the like, for determining the long term future of the child, on the one hand, and, on the other hand, the general welfare of the child during the interim period pending that final decision. I respectfully agree with your Lordship's assessment of both these matters and I further take into account a somewhat unusual statement made at the Bar by counsel for the petitioner to the effect that the petitioner had no desire to separate the children from the respondent and, further, that he had no present intention to raise custody or contact proceedings which, if successful, would in practice require the respondent to return to live an unhappy life in Australia. While it is doubtless to the petitioner's credit that he should take account of practical considerations of that nature, I have to say that it is not immediately clear to me why he views the present proceedings in any different light. At all events, whatever may be the precise objects of the Convention and whatever may be the precise ambit of the discretion we are exercising, I am satisfied that the foregoing considerations, taken together, are themselves determinative of the result arrived at by your Lordship. [41] For all these reasons I agree that the reclaiming motion should be allowed, that the interlocutor of the Lord Ordinary should be recalled and that the prayer of the petition should be refused.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Cameron of Lochbroom
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P340/03 OPINION OF LORD CAMERON OF LOCHBROOM in RECLAIMING MOTION in PETITION of K.T. Petitioner and Respondent; against J.T. Respondent and Reclaimer; _______ |
Act: Dowdalls; Morton Fraser (Petitioner and Respondent)
Alt: Davie; Drummond Miller (Respondent and Reclaimer)
15 October 2003
[42] I agree that for the reasons given by your Lordship in the chair this appeal be disposed of as proposed by your Lordship. In particular I am grateful to your Lordship for and adopt in full your Lordship's analysis of the evidence and the conclusions to be drawn from it. [43] In my opinion the Lord Ordinary, on the evidence before him, misdirected himself as to the proper approach to the first question which he required to determine, namely, whether the respondent had established that the removal by her of the parties' children from South Australia, the place of the children's habitual residence, took place with the reclaimer's "consent", as that word is to be interpreted in the context of Article 13 (1)(a) of the Convention. It is important, in my view, to have in mind that, as Lord Browne-Wilkinson pointed out in In re H (Abduction: Acquiescence) 1998 AC 72 at p.81, the object of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence and that this object is to be achieved by establishing a procedure to ensure the prompt return of the child to the state of his habitual residence. [44] Counsel for the parties took no issue with the Lord Ordinary's statement that in cases such as the present it is for the parent who has removed the children from the jurisdiction of their habitual residence in breach of the other parent's rights of custody, to prove on a balance of probabilities that the other parent consented and that the evidence in support of consent requires to be clear and cogent. Whether or not a parent has consented to the children's removal is, of course, a question of fact. The issue was, in my opinion, succinctly put by Ward L.J. in Re P (a Minor) (Court of Appeal 6 March 1998) as follows:"The parties agree that the onus is on the mother to establish (consent), that it should be shown in a manner similar to that which is required now for acquiescence in the light of the House of Lords decision in In re H.... The task of the court is to find as a fact whether the father subjectively intended or not to give unconditional consent to the removal of the child."