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Thomson v. Thomson, [2003] ScotCS 263 (15 October 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Marnoch

Lord Cameron of Lochbroom

 

 

 

 

 

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."

[11]     
Before coming to the issues in the present case it is convenient to consider the correct approach which should be adopted when it is maintained by one parent that he or she had the consent of the other to the removal of a child to another country or the retention of the child in that country.

[12]     
It may be argued that, if there was consent, the removal or retention was not wrongful, and hence that the removal or retention would not be covered by Article 12, as read with Article 3, or by Article 13 since the latter Article is concerned with cases of wrongful removal or retention which fall within Article 12. The implications of this would be that (i) the onus of proof for which Article 13 provides would not apply; and (ii) the court would not have the discretion under Article 13 to order the return of the child, notwithstanding the fact that the removal or retention had been consented to.

[13]     
I agree with the view expressed by Holman J. in Re C (Abduction: Consent) [1996] 1 F.L.R. 414, to which we were referred, that this argument is not consistent with the terms of the Convention when they are read, as they should be, as a whole. It is plain that to give effect to the argument which I have outlined would frustrate the intention of the Convention that the issue of consent should be dealt with under Article 13, and that the court should have the power to order the return of the child even where the defence of consent has been made out.

[14]     
Accordingly I am satisfied that where the issue of consent has been raised, as in the present case, the onus is on the parent who asserts that the removal was with the consent of the other parent to prove that this was so. Proof is on the balance of probabilities, the cogency of the evidence which is required depending on the degree of improbability that consent has been given. In this connection I note that in Re H. (Abduction: Habitual Residence: Consent) [2000] 2 F.L.R. 294, - to which we were not referred - Holman J. at page 301 modified the view which he had express in Re C at page 419. The consent has to be real, positive and unequivocal (Re K. (Abduction: Consent) [1997] 2 F.L.R. 212, per Hale J. at page. 217). It may be noted that in the present case the Lord Ordinary observed that there was no issue of credibility as between the petitioner and the respondent.

[15]     
For the petitioner Miss Dowdalls submitted that, for the purposes of Article 13, whether a parent had consented depended primarily on whether he or she had subjectively intended to and did give that consent. That submission can be supported by reference to the decision of the House of Lords In re H and Others (Minors)(Abduction: Acquiescence) [1998] AC 72, to which we were not referred. While that case was concerned with the defence of acquiescence the speech of Lord Browne-Wilkinson is expressed in such a way as to indicate that it would cover consent also. In that speech he observed at page 90 that the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends on his actual state of mind, and that the subjective intention of the wronged parent was a question of fact for the trial judge to determine, although in reaching his decision on that question of fact he would no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertion in evidence of his intention. It appears that since that decision there may not have been a consistent practice in England in approaching the question of consent. However, I will proceed on the basis that this is the correct approach for the purpose of testing the respondent's case.

[16]      On the issue of consent the position of the parties was as follows. The petitioner maintained that he had consented only to the children visiting Scotland for a limited period on the occasion of the wedding. If that was so, he would not have consented to their removal to Scotland, so far as Article 13 is concerned, since removal in the sense of that Article plainly means removal to another country at least for the indefinite future. The respondent's position was that the petitioner had consented to the removal of the children in that sense.

[17]     
For the respondent Mrs. Davie criticised the Lord Ordinary's treatment of the evidence in a number of respects. He had failed to take account of the respondent's evidence that it was after she had bought the tickets in April 2002 that she had decided to return to stay in Scotland. He had also not taken account of her evidence - which was not challenged by the petitioner - that she had told him that when she had got a job in Scotland she would send for her belongings. She had also told him that she had asked her mother to book the children into a school in Scotland. She also explained in evidence that she had not withdrawn the children from their school in Australia in order to avoid awkward questions.

[18]     
Mrs. Davie also criticised the Lord Ordinary on the ground that he had failed to make clear on what facts he had reached the conclusion that the petitioner at no time consented to the removal of the children. There was no evidence that the respondent had ever said to him on any previous occasion when she was leaving Australia that she was not returning. It was not an accurate reflection of the evidence to say that the petitioner had concluded, no matter what the respondent said, that she would return in January.

[19]     
I am bound to say that I have some difficulty in determining the reasons for the Lord Ordinary's conclusions, in view of the brevity with which paragraph 23 is expressed. However, it appears that he did not accept that the petitioner had consented to more than a holiday for the respondent and the children, because he, the respondent, had concluded that, despite what the respondent had said, she would return in January. The difficulty which I have with this is that it does not appear to take full and accurate account of the relevant evidence of the petitioner, to which I must now turn.

[20]     
It is true that the petitioner said that he was willing that the respondent should go to Scotland with the children for the wedding, and that he had told her so (transcript page 206). He thought that the break would have done her good (208). This was all that he had agreed to (277, 330).

[21]     
However, he also said in evidence that she had said to him if she got a house and a job in Scotland she might stay there (291). He said that he could not dispute that he had said to her - as she had stated in her evidence - "If that what's you've got to do to make you happy, then that's what you've got to do" (312). When he was asked whether he had discussed with her the possibility of her not coming back, he replied: "Yes, it was always a risk. She had spoke about it" (271). He said that he never agreed to her staying permanently in Scotland, but

"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).

[22]     
He said that when she left Australia in September 2002 he "anticipated" that she would return (268). He "thought" that she would do so (277). He "hoped" that she would return (320). But he was worried that she might not come back in January (283, 300).

[23]     
His explanation of his position was that he thought that she was unsure what she was doing (272). He did not think she was going to Scotland indefinitely, because the facts did not suggest that was the case (276). She had not made a firm decision herself that this was going to happen (278). Until the telephone call there had been "nothing conclusive" because

"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).

[24]     
For the avoidance of any doubt on the point, I should make it clear that, according to the evidence and in the submissions made to us and, it appears, to the Lord Ordinary, there was no question of the respondent being separated from the children at any time. Accordingly, whatever was the consent which was given by the petitioner, it applied to both the respondent and the children.

[25]     
In the light of these passages in the petitioner's evidence, which I have thought it best to set out at some length in order to give the full import of what he said, it is an overstatement to say that he concluded that, no matter what the respondent said, she would return to Australia in January 2003: he plainly was worried that she would not do so. This is not surprising in view of the fact that in 1998 he had had to go to Scotland before she was persuaded to come back to Australia: and, furthermore, the fact that this time she had said that she might stay in Scotland if she got a house and a job. I should add that in her own evidence the respondent put the matter more strongly. Her account was that she had said to him: "I'm going to go and stay in Scotland. I'm going to go and look for work, look for housing and see how we adapt and how we go with that" (42).

[26]     
As I have noted, the petitioner gave evidence that all that he had consented to was that the respondent and the children should have a holiday in Scotland. This is in line with the letter written by his solicitors after the telephone call to the respondent in Scotland. However, it is not in dispute that, in a conversation between them some months before she left, his response to her stated intention was one of acceptance: "If that's what you've got to do to make you happy, then that's what you've got to do". This appears to me to be a highly significant part of the evidence, the implications of which the Lord Ordinary does not appear to have addressed. It shows that the petitioner did consent unambiguously to the respondent staying on in Scotland if that was what she decided to do. If the petitioner had any reservation about what had been said, it was not that he did not mean what he had said, but that he was not sure whether, once the respondent got to Scotland she would go through with her stated intention. However, he accepted that that was a matter for her to decide.

[27]     
Mrs. Davie compared the circumstances of the present case with that of Re K, to which I have already referred. In that case Hale J., in finding consent established, preferred the evidence of the mother who had removed the parties' daughter from Texas to England. At pages 214-215 the judge summarised the mother's evidence as follows:

"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 ... ".

[28]     
In the present case, as Miss Dowdalls pointed out, there was no explicit evidence to the effect that the petitioner had agreed that the respondent should keep the children if she decided to stay in Scotland. However, as I have already noted, there was no question of the respondent being separated from them. The respondent did not want this, and the Lord Ordinary did not draw any distinction, as between the respondent and the children, in regard to the question whether the petitioner had given his consent.

[29]     
I do not overlook the fact that the petitioner gave evidence that he told the respondent he wanted her to come back to Australia. I do not doubt his evidence that he would have preferred that she remained in Australia with the children. However, that is not the same thing as withholding his consent. I agree with the observations of Wall J. in Re M. (Abduction)(Consent: Acquiescence) 1999 1 F.L.R. 174, where he said at page 188: "A father who consents to his children living abroad may have the gravest reservations about that course; those reservations do not render his consent invalid", and where he said at page 190 that a father "may not be happy about the prospective removal, but that does not vitiate his consent, if the evidence is otherwise sufficient to establish it".

[30]     
In these circumstances I consider that the conclusions of the Lord Ordinary in regard to the matter of consent were flawed, in respect that he overstated the petitioner's expectation as to the respondent's coming back to Australia, and did not address the implications of the conversation between the parties. In the light of my consideration of the evidence I am satisfied that the consent which the petitioner gave to the respondent and the children leaving Australia was not limited to the duration of a holiday but was for an indefinite period, with the outcome being left by him to the respondent's decision. The fact that it was uncertain whether the respondent would stay on in Scotland did not vitiate his unqualified consent.

[31]     
I now require to consider whether or not, in the exercise of the court's discretion, we should order the children to be returned to the jurisdiction of the Federal Court of Western Australia. This is not a question on which the Lord Ordinary has expressed a view, standing his conclusion that the defence of consent did not succeed.

[32]     
In approaching this question I should bear in mind the general purposes of the Convention, which include discouraging the uprooting of children from the jurisdiction in which they have been habitually resident and having any dispute between parents as to the future of their children dealt with in that jurisdiction, as being the jurisdiction where the best information is available. However, as Hale J. observed in Re K. at page 220, in cases of consent these factors carry a different weight. In the present case there is no question of the respondent having acted in an underhand way. There is no current litigation about the children before the Australian court. If the children are returned to that jurisdiction, there may in due course be an application by the respondent for leave to take the children to Scotland. Mrs. Davie maintained that in the present case there was a relatively weak link between the children and Geralton, where they had not lived for long.

[33]     
The exercise of discretion also involves giving consideration to the general question whether the interests of the children's welfare points to the desirability of their being returned to Australia, on the one hand, or to their remaining in Scotland, on the other. Mrs. Davie informed the court that the children were well settled in Stornoway, where they attended school and had developed a circle of friends. The respondent was employed as a staff nurse, working 27 hours per week. She and the children had initially stayed at her mother's house until a week before the hearing of evidence when they moved to a council house where they now live. The children had the benefit of a large and supportive extended family. They had now been in Scotland for over a year. They had come happily to Scotland. For them to be returned to Australia would be disruptive. Furthermore, it would not be good for them to be in the care of the respondent when she was unhappy to return to Australia and to live there. For the petitioner Miss Dowdalls confirmed that he had no desire to separate the children from the respondent. If the children were to remain in Scotland he would seek to maintain contact with them. As regards family members in Australia, Mrs. Davie pointed out that they were relatively limited. The petitioner's sister and her husband lived in Perth, which was some five hours travelling distance from Geralton.

[34]     
Having considered both the children's' connection with the Australian jurisdiction and the general question of their welfare, I am in no doubt that on balance it is preferable that they should remain in Scotland with the respondent. In these circumstances I move your Lordships to allow the reclaiming motion, recall the interlocutor of the Lord Ordinary and refuse the prayer of the petition.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Marnoch

Lord Cameron of Lochbroom

 

 

 

 

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

Lord President

Lord Marnoch

Lord Cameron of Lochbroom

 

 

 

 

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."

[45]     
It was not sufficient, in my opinion, for the Lord Ordinary to determine the issue, as he did in para. 23 of his Opinion, by saying that the respondent had 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". The balance of probability standard means that a court is satisfied there was consent if it considers that, on the evidence, it was more likely than not that the other parent consented.

[46]     
In the present case, for the reasons which your Lordship in the chair gives, I agree that on the evidence, and indeed, in my view, even on the material to which the Lord Ordinary specifically directed his attention, it was plain that the respondent knew that his wife might remain in Scotland with the children and not return to Australia at the end of the holiday, if she could find employment in Scotland and so provide for the children. In his own evidence the respondent conceded that this was a "risk" of which he was well aware before his wife and children left for Scotland, albeit that he thought that his wife herself was "unclear" in intention. That being so, it was not enough, in my opinion, for the Lord Ordinary to determine the issue of consent upon the basis that "the petitioner was right to conclude, no matter what the respondent said, that she would return in January". The substance of the evidence was clear that, against the background of the increasingly unhappy relationship between the parties, the respondent, prior to his wife's departure from Australia, was fully aware, from what she had said to him, that she might well not return to Australia in January 2003 and was agreeable in such circumstances to the children remaining with her in Scotland thereafter. I consider that the balance of the evidence lay in favour of the reclaimer's contention that the respondent subjectively intended to and did give unconditional consent to the removal of the child.

[47]     
Nevertheless the removal of the children to Scotland and their retention in Scotland must be regarded as "wrongful" for the purposes of the Convention, and in particular of Article 13(1)(a), since the wrongfulness arises from the removal of the children from the jurisdiction of the State of their habitual residence. From that wrong is derived the right of the wronged parent, whose rights of custody have thereby been breached, as they apparently have been in the present case, to seek an order for their summary return to that jurisdiction. However, what happened in the present case could on no view be regarded as or termed abduction. Article 13(1)(a) gives this court a discretion as to whether or not to order summary return. No issue arises in this case of the kind referred to in In re H supra, namely, whether the respondent had led the reclaimer reasonably to believe that, contrary to his true intentions, the respondent would not seek the summary return of the children if their mother settled with them in Scotland and so retained them there. In accepting that this court has a discretion whether to order summary return or not and that this is consistent with the policy of the Convention as explained in Singh v. Singh 1997 SC 68 , I recognise that I appear to have fallen into error in Murphy Petr. 1994 GWD 32-1873 in refusing to make an order for summary return of children without having done so as an exercise of discretion. As was said in Singh at p.71, the general policy of the Convention, subject to exceptions such as those permitted in terms of article 13, envisages and is designed to achieve the return, forthwith, of children wrongfully removed or retained to the State of their habitual residence. Orders for summary return are not intended to be determinative of questions of custody and access, or even to return the child de facto into the care or control of a parent resident in the State of the child's habitual residence. Likewise I accept that in exercising its discretion a court must bear in mind the general policy of the Convention as well as the welfare of the children, again as set out in Singh. Beyond that I do not find it helpful to try to generalise as to the weight to be given to these factors or as to other factors which may come into play in the exercise of that discretion in the circumstances of particular cases.

[48]     
In the present case, for the reasons given by your Lordship in the chair, I agree that this court's discretion falls to be exercised in the manner proposed by your Lordship.


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