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Cite as: [2004] ScotCS 246

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M, Re a Petition for an Order [2004] ScotCS 246 (11 November 2004)

OUTER HOUSE, COURT OF SESSION

P1582/04

 

 

 

 

 

 

 

 

 

 

OPINION OF LADY SMITH

in the Petition of

 

M

Petitioner;

for

 

An Order under the Child Abduction and Custody Act 1985

__________

Petitioner: Hayhow; Balfour & Manson

First Respondent: Scott; Bonar Mackenzie

Second Respondent: Mundy; Mowat Hall Dick

11 November 2004

Background:

[1]      The child, S, who is the subject of this application, was born on 17 October 1992. He is, accordingly, now aged 12 years. He was separately represented. His mother, the first respondent, is a US citizen and his father, the petitioner, is Scottish. They were married in Scotland on 26 August 1988 and lived continuously in Scotland until July 2002. From 1997 to 2002, the family lived in Helensburgh. S attended primary school there. The first respondent was married previously and the daughter of that marriage, who is now 24 years old, lives in Glasgow and appears to have done so for some time. In July 2002, the family home in Helensburgh was sold and they moved to Ireland.

[2]      The circumstances in which they came to move to Ireland were, for the purposes of the first respondent's argument that she did not become habitually resident in Ireland, in some respects, disputed. However, it appeared to be agreed that the impetus for the move was that Helensburgh was proving to be too expensive. At that time, the petitioner's business was not doing well. That business involves the use and sale of information technology for the tourism and cultural heritage, with a particular focus on the golf industry. It had got to the stage that the prospects of moving the business forward in Scotland were remote but investigations as to prospects of furthering the business in Ireland looked good. It is not entirely clear why that was so but it appears to have had something to do with the costs of running the business being lower in Ireland and with there being government funding and support available there which is not available in Scotland. However, it did not seem to be disputed that the feeling was, in 2002, that they needed to move out of Scotland for the purposes of the petitioner's business and the first respondent did not dispute the petitioner's current assertions that he has good reason to be optimistic about the prospects for the business at the moment. Amongst other things, he has a government funded contract to carry out work in connection with what he refers to as his antique golf business and he is hopeful of selling the website side of his business activities. The first respondent had not been in permanent employment in Scotland and by July 2002, a short term contract she had had, involving her working as a research assistant, had come to an end.

[3]      The petitioner and first respondent did not purchase a house in Ireland at first. They rented a property which proved to be unsuitable. They tried to purchase a cottage but the sale fell through and, in April or June 2003, they moved to a better rented property. It is described in the affidavits as being a modern four-bedroomed house and as being spacious. Whilst the first respondent and S were critical, justifiably it seems, of the quality of the first rented property, they state no criticism of the quality of the second rented house. They have, this year, bought a farmhouse which is, at present, derelict. It was purchased with the intention of renovating it.

[5]      S was enrolled at a primary school, in Ireland, in 2002, and completed two full academic years there. During school holidays, he and the first respondent usually visited Scotland. On 1 July 2004, they left Ireland for such a visit. They stayed initially with the petitioner's mother. They then, it seems, moved between Glasgow, where they stayed with the respondent's daughter, and Helensburgh, where the points of contact were old friends. At some point, the exact date of which is not entirely clear, the first respondent decided that she was not going back to Ireland. That decision seems to have been made very shortly before 23 August 2004, on which date she enrolled S at a school in Helensburgh. The first respondent and S have, since that decision was made, moved addresses between friends' houses and hotel accommodation. The first respondent is, though, hopeful of obtaining rented accommodation once her present application for Housing Benefit has been processed. In terms of the relevant Irish legislation, the Guardianship of Infants Act 1964 s.6(1), the petitioner and first respondent are joint guardians of S.

The present proceedings:

[6]      The first respondent consulted a solicitor in Dumbarton and, on 20 September, an action was raised in Dumbarton Sheriff Court in which she sought orders interdicting the petitioner from removing S from her care and control and finding her entitled to have him reside with her. Meanwhile, the petitioner had taken legal advice in Ireland and he completed and signed the appropriate forms to enable the Irish central authority to seek the assistance of the central authority in this jurisdiction under and in terms of the Hague Convention on the Civil Aspects of International Child Abduction, on 13 September 2004. The request followed and the present petition, in which the petitioner seeks an order for the return of S to Ireland, was lodged on 7 October 2004.

[7]      Answers were lodged on behalf of the first respondent and, separately, on behalf of S. The first respondent opposed the granting of the order sought on two grounds, firstly, that S was not habitually resident in Ireland at the time that he was retained in Scotland and, secondly, that he objected to being returned. S opposed the granting of the order sought on the ground that he objected to being returned. At a hearing on 15 October 2004, it was agreed that S should be interviewed by a child psychologist with a view to determining his age and level of maturity, whether he did object to being returned to Ireland, and if so, why, whether his views were independent of parental influence and whether he appreciated that the purpose of a return would be to enable the court in Ireland to make the decisions about where his long term future should lie. Counsel drew my attention to the case of W v W 2003 SLT 1253 and what was said there by the Inner House regarding the procedures that should be followed when seeking to ascertain a child's views when an objection to returning is averred. Counsel also agreed that the child psychologist appointed should, if possible, be drawn from a list of provided by them. I pronounced an interlocutor appointing Mrs B, one of the psychologists on the list, to interview S to ascertain his views using terms which sought to reflect, as closely as possible, the wording used in the opinion of the court in W v W.

[8]      A hearing at which evidence was led from Mrs B and submissions were made on that and the evidence contained in a number of affidavits and other documents lodged by all parties took place on 3, 4 and 5 November 2004. The issues for determination remained those identified in the pleadings, namely:

1. Whether S was habitually resident in Ireland immediately prior to his being retained in Scotland?

2. Whether or not S objects to being returned to Ireland and, if so, whether or not an order for his return should be pronounced, bearing in mind the terms of Article 13 of the Convention?

Ultimately, however, it was recognised on behalf of the first respondent, that her opposition should, given that S was separately represented, concentrate on the first of these issues.

Habitual Residence:

[9]      The starting point is to consider the terms of the Convention which include, at Articles 3 and 4:

" Article 3

The removal or the retention of a child is to be considered wrongful where -

(a) it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

...

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. ..." .

Accordingly, unless the petitioner can demonstrate that S was habitually resident in Ireland when, in about the middle of August, he was retained in Scotland, he cannot invoke the protection of the Convention.

[10]      Parties were in agreement that the question of the place of a child's habitual residence is primarily a question of fact which falls to be determined in accordance with the law of the requested state (Re: P 1995 1 Fam LR 831; Dickson v Dickson 1990 SCLR 692).

Submissions for the petitioner ( habitual residence):

[11]      Counsel for the petitioner submitted that it was clear that S had become habitually resident in Ireland. He said that habitual residence meant one which was being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time. In the case of a child, its parents' will would determine the place of habitual residence. "Habitual residence" was not a term of art and should be given its ordinary and natural meaning; to acquire it, a settled intention and an appreciable period of residence were required (Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 per Lord Brandon at 578). The court should not embark on a detailed enquiry or analyse the matter too deeply (Re: B (Minors: Abduction) [1993] 1 FLR 993). Rather, a broad brush approach should be adopted. It was more a case of "knowing it when you see it". The appreciable period of time required would depend on the circumstances of the case. No minimum period was necessary (Cameron v Cameron 1996 SC 17).

[12]      S had, it was submitted, lost his Scottish habitual residence when the family moved to Ireland in 2002 and subsequently acquired habitual residence in Ireland. He relied on various factors in support of that submission including the fact that the family had been living in a house rented by both the petitioner and first respondent, since June 2003, that they had renewed the lease at the end of the first year, that the petitioner and first respondent had jointly purchased a farmhouse to renovate and, according to the petitioner, to do so with a view to using it as a family home, that when the first respondent and S had arrived in Scotland in July 2004, it had been for a holiday, that the family had been living in Ireland for almost two years by then, that S had been at school in Ireland throughout that period, that the petitioner and respondent had opened a joint bank account in Ireland and jointly registered for a telephone account there. The first respondent had obtained a Garda immigration card (no.7/20 of process ). Further, the petitioner's business was located in Ireland. He also relied on the fact that the first respondent had sought employment in Ireland, as was evident from a series of job application documents (no.6/27 - 31 of process), and from a document indicating that she had been trying to obtain funding to do research work there (no.6/32 of process). She had also attended a food hygiene course run by the Environmental Health Officers Association in Ireland, which she passed and for which she received a certificate dated 4 May 2004 ( no.6/25 of process ). The petitioner had obtained a certificate of motor insurance under Irish law ( no.6/33 of process). Although the family had left furniture behind in Scotland, that was because they had been living in furnished rented property and, according to the petitioner's mother, who stored furniture for them and had provided an affidavit dealing with the matter, it was not a question of her storing it on the basis that she was doing so pending the family's return to Scotland. She had done so pending the family requiring the furniture once their house in Ireland had been renovated. In respect that the first respondent insisted that the option of returning to Scotland if things did not work out was in her mind, that did not, he submitted, undermine the proposition that she had acquired a habitual residence in Ireland whilst there. It was, in all the circumstances, plain, he said, that the family, including S, became habitually resident in Ireland and were habitually resident there immediately prior to his being retained in Scotland.

Submissions for the first respondent (habitual residence):

[13]      Counsel for the first respondent submitted that she had never lost Scottish habitual residence, which failing that, even if she had done so, she did not acquire Irish habitual residence. That being so, S had not acquired habitual residence in Ireland and the Convention did not apply. Counsel also, initially, stated a submission to the effect that if S had acquired Irish habitual residence then, independently of his mother, he had acquired a habitual residence in Scotland at some point after the beginning of the summer holiday this year, but that submission was not insisted upon. The test for habitual residence was, it was accepted, as laid down in Re: J and approved of in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, and the matter did not fall to be determined by means of microscopic examination. On the matter of the test for habitual residence reference was also made to Re: N [2000] 2 FLR 899, Re: F (Minors: Abduction) [1992] 2 FCR 595, and Lord Advocate v Secretary of State for Work and Pensions (unrepd, Extra Division - 25 March 2004). There was evidence which would entitle the court to find that the first respondent did not abandon her Scottish habitual residence. Her position was that the move to Ireland was on a trial basis. She did not want to move there. The matters founded on by the petitioner as being indicative of her having acquired habitual residence in Ireland were, in some respects, matters of practical convenience such as opening a bank account and registering for a telephone. The acquisition by her of the Garda immigration card had occurred on an occasion when she was returning from a visit to the USA and she was told, when tendering her passport to re-enter Ireland that she should register with the Garda in accordance with Irish immigration laws. As regarded the job applications and the course, she had had to fill her time somehow and the petitioner had assisted with writing the applications. The purchase of the farmhouse to renovate had been part of her "putting on a brave face". She never felt committed to Ireland. She had spent school holidays in Scotland, with S and she had visited the USA from Ireland. S had been unhappy at school there. She had been unhappy there. She had formed no settled intention to remain, there being little reason to do so when she was so unhappy. Conversely, they had left furniture and effects behind in Scotland, she and S had remained registered with her doctor and dentist in Scotland, carrying on obtaining dental check - ups when back in Scotland, she had retained her Scottish bank account, she had retained UK registration for her car, paid UK road tax, had an MOT test carried out in Scotland and had motor insurance with a UK insurance company. She had not obtained an Irish motor insurance certificate or an Irish driving licence. She had carried on receiving UK child benefit, having left the book with the petitioner's mother to enable her to do so. Extensive reference was also made to the comprehensive academic discussion of the concept of habitual residence contained in chapter 4 of International Movement of Children by Lowe, Everall & Nicholls a text which, although stated to relate to the law of England and Wales only, refers to and draws on a number of Scottish authorities on the subject.

Discussion (habitual residence):

[14]      It is evident from the authorities to which I was referred that, in the ordinary case, the habitual residence of a child whose parents are married is that of its parents, one of whom cannot change the child's habitual residence except with the agreement of the other. It is also evident from, in particular, Shah [1983] 2 AC 309, Re: J, Cameron v Cameron, Nessa v Chief Adjudication Officer, and Al Habtoor v Fotheringham [2001] EWCA Civ 186, that the essential relevant factors, when determining the place of a child's habitual residence are:

(a) the term "habitual residence" is not defined by the Convention and is to be understood according to its ordinary and natural meaning;

(b) the term is to be taken as referring to a person's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of or way of his life for the time being whether with the intention of staying for a long or short period;

(c) the question of whether or not a person is habitually resident in a specified country is a question of fact to be determined in the light of all the circumstances of the case;

(d) there is no fixed period of residence in the new country required before habitual residence can be established. The requirement is that it be established that there has been residence in the new country for an appreciable period which must mean a period which, in the circumstances of the particular case, is sufficient to show that the former habitual residence has been departed from and that the new residence has become habitual and is likely to continue to be so;

the length of time required for the period to be regarded as ' appreciable' may be short in some cases and longer in others, all depending on the particular facts and circumstances involved.

[15]      From a review of the authorities it is also clear that the comments of Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1FLR 915 that "a settled purpose is not something to be searched for under a microscope. If it is there at all it will stand out clearly as a matter of general impression." are well founded.

[16]      Having given careful consideration to the material contained in the affidavits and other documents, I am satisfied that the picture in this case is of the petitioner and first respondent having agreed that they should move away from Scotland and having agreed that that should be a move to Ireland. Some thought was given to the possibility of moving to France, as is evident from the e-mail sent by the first respondent to Mary Grandon, on 19 July 2002 ( no.6/20 (a) of process) but that does not seem to have been followed up. I would, at this point, record a submission by counsel for the first respondent that I should take no account of any copy e-mails produced that bore to have passed between her and persons other than the petitioner as they were thought to have been obtained as a result of "hacking". The submission was not, however, pressed and nor was any authority referred to in support of it. Since, in a matter relating to the best interests of a child, as Convention cases do, all relevant material should, in my view, be made available to the court, I decided not to uphold that submission in the absence of full argument in support of its being upheld. In any event, the material involved in the e-mails objected to was limited.

[17]      The precise circumstances in which Ireland was settled upon as the country to which they would move are not clear but the first respondent does accept that she agreed to move there. She did so, she asserts, on the basis that the petitioner accepted that if it did not work out then they would return to Scotland. That there must be some truth in that would seem to borne out by the fact that, in his supplementary affidavit, S states that he recalls his father saying that if they did not like Ireland then they could go back. I do not, however, consider that the first respondent having continued to entertain any thoughts to the effect that they would move back to Scotland if the move to Ireland did not work out means that her move to Ireland was other than voluntary or, when all the circumstances are considered together, such as to indicate that she did not, whilst there, form the requisite intention for the acquisition of habitual residence.

[18]      Once in Ireland, the picture is of the petitioner, first respondent and S having established and conducted a regular family life there, with the petitioner as the family breadwinner. They found family accommodation. When the first rented property proved to be unsatisfactory, they did not return to Scotland, but they found better rented property in Ireland. They enrolled S at school, a school which he attended for six terms. He did attend a different school at one point because, according to the first petitioner, of difficulties that S was experiencing at school involving him being teased by other children but he did not like the new school and returned to his original school after a couple of weeks. They did not, when schooling problems arose, return to Scotland. Whilst the first respondent regularly returned to Scotland with S during school holidays, she did so in circumstances where her daughter was continuing to reside in Scotland as was the petitioner's mother, who she had always been in the habit of visiting and she did not, until August 2004, have any thoughts of remaining in Scotland at the end of any of the prior visits. Even at the beginning of the visit this summer, she had not come across with a view to staying ,according to the witness K F, whose affidavit was relied on by the first respondent. The petitioner worked at his business in Ireland and was successful in obtaining various types of government funding for it. The first respondent tried to get work in Ireland, as is evident from the e-mails relied on by counsel for the petitioner and from a reference in an e-mail to her son (no.6/20) (b) of process) to her having applied for a job at a university, and she gained a qualification in Ireland. Her instructions to her counsel were, it seemed, to seek to denigrate the qualification as having been the product of just three Mondays but she must have gone through the process of deciding to do it, applying for it, attending and working to pass the tests that were evidently set at the end of it. Given her attempts to obtain employment in Ireland which I regard as being relevant notwithstanding the fact that she was assisted with the writing of them by the petitioner, she must have thought that the qualification would have been of some use to her. It is an Irish qualification. She joined with the petitioner in opening a bank account in Ireland and in registering for a telephone. She acceded, without apparent demur, to the Irish immigration department's instruction that she required to register with the Garda and obtain an immigration card. She joined with the petitioner in attempting to purchase a cottage in Ireland, which fell through. She did not, however, then refuse to participate in any further Irish purchase or return to Scotland at that point. Rather, she joined in purchasing the farmhouse that was referred to (which must have involved searching for and investigating the availability of domestic property for purchase in Ireland) and she did so with the intention of renovating it, something which, of itself connotes an intention to reside there for a significant period, even if, as she now states, it may not have been with the intention of eventually living there. The renovation was, according to G M's affidavit, to be the first respondent's project. I reject the first respondent's assertion that she did not, in March or April 2003, agree to the purchase of the farmhouse with a view to living in it. That much seems apparent from the foregoing and also from the terms of the e-mail to her son in the USA sent on 9 April 2003:

"The house has a half finished new roof with all new roof joists which is a plus. We will have to build on an extension but will try to get the main house habitable so we can move into it a.s.a.p. It'll be nice."

The same e-mail appears to be further evidence of the first respondent thinking of living in Ireland in the long term in the following passage:

"If we get rich there are a lot of holiday homes for sale everywhere by the sea because all the Germans and English seem to be moving back - the Germans at least seem to be selling up their retreats by the sea. So we can have it all!".

[19]      Whilst, in her affidavit, the first respondent states that when it came to buying the farmhouse that was purchased by her and the petitioner, she agreed to it simply because she thought that they should invest their money in an asset, it is difficult not to conclude that she must, at that time also, in fact have intended that it would be the family home. The petitioner states that that was the intention and, as K F's affidavit indicates, the first respondent did not arrive in Scotland even as at July 2004 with the intention of staying here. The petitioner and first respondent's liability for mortgage payments in respect of the purchase of the farmhouse commenced, I was told, some months ago. It is not difficult to conclude that they had bought the farmhouse with a view to making it their home, albeit that they would have had to carry on living in rented accommodation in the meantime. That is rented accommodation of which no criticism is made and which is described by the petitioner's mother in her affidavit as being a lovely new house. She also makes reference to having observed, when visiting her the petitioner and first respondent in Ireland, that the first respondent had a lot of friends there and went to a yoga class there. The picture is very much one of habitual residence in Ireland having become well established by July 2004.

[20]      Various factors were relied on by counsel for the first respondent as showing that she had not lost her Scottish habitual residence. The overwhelming impression was, however, that she was asserting that she was unhappy in and does not like Ireland but is happy in and likes living in Scotland. But pleasure or disappointment in a new abode cannot determine whether residence acquires the characteristic of being habitual or whether the old habitual residence is lost. It seems as possible for a new habitual residence to be acquired, following the analysis of the concept in the relevant authorities, in circumstances where a person expresses negative sentiments about it as it is where those sentiments are positive. A person may, for instance, deliberately agree to go and work in another country for a period of time fully expecting to dislike the environment and finding that they do, indeed, dislike the environment yet, on taking up the job and living a regular life there, still be held to have acquired a new habitual residence. It may be easier to establish habitual residence in a case where the person positively embraces the new environment as there are likely to be more points of contact with it established in early course. That is not, however, to say that where there is dislike, the old habitual residence will be retained or that a new one will not be acquired. Further, settlement in the new country on the basis that it is to be for a trial period is not destructive of the possibility of loss of the original habitual residence or acquisition of a new one. That that is so is evident from the decision in the case of Cameron v Cameron, a case in which parties had agreed that the arrangements under which the children's father was to have them living with him in France were to be reviewed after six months. Notwithstanding the review provisions the children were found to have become habitually resident in France after only four months residence there.

[21]      Various individual factors were relied on by counsel for the first respondent as showing that she had not lost her Scottish habitual residence. The failure to close her Scottish bank account was not something, in my view, of particular significance in the modern world where a change of residence does not necessitate a change of banking arrangements. As regards the position with her car, I was advised by counsel for the petitioner that many people in Ireland have their vehicles registered in, taxed in and insured in the UK as it is cheaper to do so. As regards the matter of child benefit, whilst I was referred to the residence qualifications set out in s.146(2) of the Social Security Contributions and Benefits Act 1992 and the regulations made thereunder, there is no inkling of the first respondent having had the provisions of that Act or those regulations in mind when she decided to carry on claiming UK child benefit. I cannot see that the continuing claims for child benefit assist. Much was sought to be made of the position with the furniture and effects left in Scotland but the first respondent accepts that they had sold their house in Scotland and that, since moving to Ireland in 2002, they had been living in rented furnished accommodation. It is self evident that the furniture could not sensibly have yet followed them to Ireland and there is nothing in the evidence that indicates that it was being retained in Scotland because that was where the first respondent retained her habitual residence. The petitioner is joint owner of the furniture and he does not ascribe any such intention to the retention of the furniture there nor does the custodian of much of it, his mother. Further, she refers to the first respondent, far from retaining in Scotland some goods that were stored in a friend's garage in Helensburgh, having cleared it out last summer. Finally, as regards the first respondent's habit of returning to Scotland during school holidays, I do not see that these visits signify anything more than that that is what they were, namely, holidays. She had people to visit here and she always, until this summer, returned to Ireland in time for S to return to school. The visits being regular, it is not that surprising that she continued to be registered in Scotland for medical and dental purposes .

[22]      The clear overall impression that I have gained from the evidence is that the first respondent lost her Scottish habitual residence when the family sold up and moved to Ireland, she having agreed to do so in circumstances which were clearly for the benefit of the petitioner's struggling business where he was the family breadwinner. She made a home there along with the petitioner and S. The continuing links that she maintained with Scotland were not, in my judgment, such as to indicate a retention of Scottish habitual residence. Further, the evidence is clearly to the effect that she acquired a habitual residence in Ireland. Whatever her dislike of and reservations about the place, she lived an apparently regular family life for a lengthy period of almost two years, a residence which, through purchasing property for renovation and applying for jobs there gave rise to the inference of a likelihood of continuation beyond that time.

[23]      I find, accordingly, that the Convention does apply which means that S was wrongfully retained in Scotland in about mid -August, when the first respondent decided that they would not return to Ireland. The issue then arises as to whether I am bound to order S's return and, if not, whether, I should decline to do so, bearing in mind the provisions of article 13 of the Convention.

Article 13:

[24]      Article 13 of the Convention provides for an exception to the rule that where a child has been wrongfully retained in a requested state, that state must order that the child be returned to the state of its habitual residence. Insofar as relevant, the provisions of article 13 of the Convention are:

"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

[25]      The interpretation and application of that part of article 13 has been the subject of much discussion in the authorities. Counsel for the first respondent and for S advised me that concern has arisen amongst those in the legal profession that there is an apparent conflict between appellate authorities as to how the provisions should be interpreted and applied, particularly in Scotland, given the analysis contained in W v W, a case which would have been appealed to the House of Lords, had parties not, eventually, reached agreement regarding the return of the children involved. Scottish and English authorities were both considered in detail, given that the Convention, being an international instrument, is a United Kingdom matter. Counsel for the first respondent and for S were in agreement as to how the provisions should be interpreted and counsel for the petitioner, whilst he did not go so far as allying himself with the arguments being advanced by them, did accept that W v W represented what he called "an innovation" and a " development".

[26]      The starting point is to consider the case of In re: S [1993] Fam. 242, a case which involved a child of a French father and English mother who objected to being returned to France because a speech impediment from which she suffered had improved since she had arrived in England and was anxious that it would deteriorate again if she was returned to a French speaking school in France. The Court of Appeal rejected a submission that the word "object" imported a strength of feeling that went far beyond the usual ascertainment of a child's wishes in a custody dispute (see: p.250 C -F). The word was to be given its ordinary meaning. The objection in question did, though, require to be an objection to being returned to the country of habitual residence for the purpose of the court there making the decision as to where its future lay. Two questions of fact required to be addressed namely: "... whether: (i) a child objects to being returned; and (ii) has attained an age and degree of maturity at which it is appropriate to take account of its views.." (at p.250H - 251A). The approach of the Court of Appeal appears to be that only if those questions are resolved in the affirmative, does the court move on and consider whether or not to exercise its discretion to refuse the order for return. That will usually, according to what is discussed at p.251C, involve considering why the child objects. There is, though, no suggestion in the decision in In re: S, that the court should consider why the child objects when determining the above two questions of fact. The result in In re: S was that the child's views were given effect to. She was 9 years old.

[27]      The next case that falls to be considered is Urness v Minto 1994 SC 249. That case concerned two children aged 12 and 9 years. Their father petitioned for an order for their return to the USA and it was said that they both objected to being returned. The Lord Ordinary found that whilst both children did object to being returned, the younger child was not of sufficient age and maturity for his views to be taken into account. On a reclaiming motion, the Inner House held that the word "objection" was not to be construed too narrowly and in the circumstances of the case, an expressed preference for Scotland was to be interpreted as an objection to being returned to the USA and was not to be disregarded by reason of the fact that it arose in the context of issues which would also be relevant in considering welfare. It is evident from the approach of the Inner House that appears at p.266, that they considered that the task for the Lord Ordinary had been firstly, to consider whether the children objected to being returned. Then, secondly, the Lord Ordinary required to determine whether each child was of a sufficient age and maturity for it to be appropriate to take account of his views. Then:

"Where a court is satisfied that a child objects to being returned, and has attained an age and degree of maturity at which it is appropriate to take account of his views, the court has a discretion as to whether or not to order the return of the child.".

[28]      The next case chronologically, of those to which I was referred, was the case of Re: R (Child Abduction: Acquiescence) [1995] 1 FLR 716. It concerned two children who were retained in the UK by their mother following a visit to her from the USA, where their father had rights of custody under a somewhat unusual joint parenting agreement. It was said that they objected to being returned. They were young children, aged 71/2 and 6 years and there was some discussion in the Court of Appeal regarding the age at which the views of a child could be considered for the purposes of article 13. There was, it was determined, no hard and fast rule and it was decided, by a majority, that the children were of an age and maturity for their views to be taken into account. Balcombe LJ observed at p.730 -1, that the younger the child is the less likely is it that it will have the maturity which makes it appropriate for the court to take its objections into account and that in the event of the court determining that the children were of sufficient maturity, then it may be that they would refuse to order their return "not that we must do so". He also left open the possibility that when considering the exercise of its discretion, the court could take welfare considerations into account ( see: p.731). Millett LJ stated, at p.734, with, it seems, the agreement of Sir Ralph Gibson:

"It is to be observed that, if a child is not of an age and maturity which makes it appropriate to take his views into account, he must be returned despite his objections and without any further inquiry into whether his return is in his best interests. If, on the other hand, he is of sufficient age and maturity for his views to be taken into account, the Convention clearly envisages that he will not be returned against his wishes, unless there are countervailing factors which require his wishes to be overridden." He also commented that the question of whether or not a child objects and his age and maturity are questions of fact. In so doing, he seemed to be referring to the threshold or gateway requirements of article 13. He added:

"... but whether, given the child's age and the degree of maturity which he is shown to possess, it is appropriate to take account of his views on the question whether he should be returned is not, in my view, a question of fact at all but a question of judgment."

Those comments would appear to apply to the discretionary stage of the judge's considerations, given the reference to the child's views on whether or not he should be returned.

[29]      The case of Marshall v Marshall 1996 SLT 429 was considered by the Inner House in November1995. One of the parties' children, a 13 year old daughter, had left Ireland without her mother's permission and come to Scotland to take up residence with her father who retained her in his custody. It was said that she objected to being returned. It was not disputed that she objected. The approach of the Inner House was to check that the Lord Ordinary had next turned to the question of whether he was satisfied that she was of the requisite and degree of maturity for her views to be taken into account, before moving onto the exercise of his discretion. With some hesitation they were satisfied that he had done so.

[30]      Moving on, the next case to consider is that of Singh v Singh 1998 SC 68, a case which was decided in September 1997 and concerned two children who had been wrongfully retained in Scotland by their mother following a visit here to attend a family funeral, when their father and two other siblings had returned to Canada with their father. It was said that they objected to returning to Canada. The Lord Ordinary found that both objected and both were of sufficient age and maturity at which it was appropriate to take account of their views but only ordered the return of one of them. In allowing the reclaiming motion that followed, the Inner House made some general comments regarding the approach to be adopted in such a case. Their approach, like that adopted in those authorities to which I have already referred was, it seemed, to accept, as was agreed by parties, that once the Lord Ordinary had made his determinations regarding objection and age and maturity, he was entitled, in his discretion to refuse to order the return of the children. The arguments in the case then centred on the question of what he could legitimately take into account when exercising that discretion. It was argued on behalf of the reclaimer that he had failed to take account of matters which he should have brought into account. At p.71, there is the following passage:

"It is clear that where there is an objection to return, by a child of sufficient age and maturity for his views to be taken into account, these particular factors, of objection and maturity, do not merely open the door to the exercise of the court's discretion, but are themselves factors to be taken into account in the exercise of that discretion. Thus, the court must put in the balance not merely the fact of an objection, but its nature and basis; and as well as taking into account the views of the child, the court will give greater or lesser weight to these views, in accordance with the child's actual age and the degree or level of maturity which the court considers it to have. In addition to these factors, it is clear that in exercising its discretion, the court must bear in mind the general policy of the Convention which, subject to exceptions such as those permitted in terms of art 13, envisages and is designed to achieve the return, forthwith of children wrongfully removed or retained, to the State of their habitual residence ... The discretion conferred upon the court by art 13, allowing it to refuse to order the return of the child, thus permits a departure from what the policy would normally require. And one consequence of this may well be that issues of custody and access will come to be determined not in the State of the original habitual residence, but in the State where the child is wrongfully retained".

Furthermore, the Inner House upheld a submission that the Lord Ordinary, when exercising the discretion under article 13, should have taken account of the child's welfare in addition to the above factors ( see: p.72H).

[31]      The following month, the case of Re B ( Abduction: Children's Objections) [1998] 1FLR 667 was determined by Stuart- White J. Reference was made to In re: S, on which he relied, and the passage at 251 D-G which Stuart - White J refers to as "dealing with the facts necessary to open the door to the exercise of discretion" (at p.674), namely that the children objected to being returned and that they were of an age and maturity at which it was appropriate to take account of their views. He then went on to consider the exercise of that discretion and in so doing took account of the children's "general welfare" (at p.675).

[32]      More recently, the case of Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 was determined, in the Court of Appeal, in April 2000. The case involved two children aged 11 and 6 years who had been wrongfully removed by their father from Spain, where the family had lived for some 6 years after leaving England. It was said that the 11 year old child objected to being returned to Spain but a return order was, nonetheless, pronounced. In considering the arguments advanced on appeal, Ward LJ began by stating that Re S was the leading authority and said that the following principles could be derived from it:

"(1) The part of Art 13 which relates to the child's objection to being returned is completely separate from para (b) ...

(2) The questions whether: (i) a child objects to being returned; and (ii) has attained an age and a degree of maturity at which it is appropriate to take account of its views are questions of fact which are peculiarly within the province of the trial judge.

(3) it will usually be necessary for the judge to find out why the child objects to being returned. If the only reason is because it want to remain with the abducting parent, who is asserting that he or she is unwilling to return, then this will be a highly relevant factor when the judge comes to consider the exercise of discretion.

(4) Article 13 does not seek to lay down any age below which a child is to considered as not having attained sufficient maturity for its views to be taken into account ...

(5) If the court should come to the conclusion that the child's views have been influenced by some other person, for example the abducting parent, then it is probable that little or no weight will be given to those views.

(6) On the other hand, where the court finds that the child has valid reasons for her objection to return, the court may refuse to order the return.

(7) Nevertheless, it is only in exceptional cases under the Hague Convention that the court should refuse to order the immediate return of a child who has been wrongfully removed."

[33]      It is evident that points 3,5,6,and 7 relate not to the 'gateway' questions of fact, but to the exercise of discretion that will arise if the gateway is passed. Ward LJ then, at p.203 - 4 sets out a three stage approach which accords with that adopted in the foregoing cases, namely that the judge has first to determine whether the child objects to being returned, then, secondly whether the child is of an age and maturity that it is appropriate to take his or her views into account. It is clear that he considers that it is only if those questions have been considered and answered in the affirmative that the third stage arises. At p.204, he said:

"... once the child is judged to be of an age and maturity for it to be appropriate for the court to take account of her views then the Art 13 defence is established and the court moves to the separate exercise of discretion as it is required to be conducted under the Convention. Each case will, of course, depend on its own facts."

(3) So a discrete finding as to age and maturity is necessary in order to judge the next question, which is whether it is appropriate to take account of the child's views. That requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others:

(a) What is the child's own perspective of what is in her interests, short, medium and long term? Self - perception is important because it is her views which have to be judged appropriate.

To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?

To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent ?."

[34]      I turn finally to the case of W v W which concerned four children who had been wrongfully removed from Australia. One of the children, who was aged 91/2 years, opposed the petition on the ground that she objected to being returned. The Lord Ordinary refused the order sought in respect of all four children, giving effect to that objection and taking into consideration the desirability of keeping the family unit together. The Inner House gave consideration to the approach to be adopted in such a case.

[35]      They stated that they found themselves in agreement with the approach of the Court of Appeal in Re T and said, at p.1258 A :

"We consider, therefore, by reference to that judgment ... that the matters to establish are:

(1) Whether the child objects to being returned to the country of habitual residence. It is also necessary to ascertain why the child objects.

(2) The age and degree of maturity of the child. The child has to know what has happened to him or her, and to understand that there is a range of choice available. The child has to have gained a level of maturity at which it can make a decision independent from parental influence.

(3) Once a discrete finding as to age and maturity has been made it is necessary to decide whether it is appropriate to take account of the child's views. That requires an assessment of the strength and validity of those views.

If the court is satisfied that the child objects to being returned, has attained an age and suitable degree of maturity, and that it is appropriate to take account of its views, it then has to decide whether it is prepared to exercise its discretion to refuse to order the child's return."

[36]      At p.1260 H, it is said, in the context of the pre- discretion "gateway" stage, that it was necessary for the Lord Ordinary to make a discrete finding as to age and maturity and then to consider whether it was appropriate for him to take account of the child's views and that he ought to, before exercising his discretion:

"Have considered the separate issue of whether it was appropriate for him to take account of H's views. That required an assessment of the strength and validity of those views which, in turn, required consideration of the reasons given by the child for her objection. In our view, the exercise of discretion properly arises only once the court is satisfied, by reference to the child's reasons, as to the strength and validity of her objection."

Then, at p.1262 D - F, it was stated:

"We do not consider that the reasons advanced by H for objecting to going back are of sufficient validity and strength to cross the high threshold and take us to the conclusion that it is appropriate to take account of the child's views. It follows that the application for her return must be granted. Had we reached a different conclusion it would have been necessary to consider the exercise of our discretion."

The Inner House also stated, at p.1261 F, that:

"The court of the country to which the child has been wrongfully removed should not reach its decision in the Convention by reference to welfare considerations."

[37]      The submissions advanced by counsel for the first respondent and counsel for S were to the effect that the approach set out in W v W did not accord with the requirements of Article 13 and was out of line with the approach in the other authorities to which I have made reference. There would seem to be considerable force in that submission. The approach in W v W would involve, at the gateway stage of considering whether the child has attained an age and degree of maturity at which it is appropriate to take account of its views, looking at the nature and content of the views that the child holds as to the question of returning to the country of habitual residence and making a qualitative assessment of them. That, however, is the task that arises, given the wording of Article 13, at the later discretionary stage, a stage which is only reached once it has been determined that the child objects and is of an age and maturity at which it is appropriate to take account of its views. That is the approach set out in all the other authorities to which I was referred, some of which are, as noted, decisions of the Inner House. At the gateway stage, the court is not assessing the strength and validity of the child's views per se. It is addressing the distinct question of whether or not the child is of such age and maturity that, in principle, it should be listened to. Further, Article 13 does not provide that the child's views regarding the issue of return require to be such as to make it appropriate that they be taken into account before the requisite finding as to age and maturity can be made. The view could be reached, for instance, that a particular child is of an age and maturity at which it is appropriate to take account of its views in general but that its views regarding the matter of return should not be taken account of at all because they are the result of undue influence by one parent or because they proceed on a misapprehension of relevant fact or for some other similar reason. In other cases, the determination might be made that the child is of the requisite age and maturity and that its views regarding the issue of return should be taken into account but because, say, they lack strength or conviction they should not be given effect to. Conversely, it could, where the child objects and is of requisite age and maturity, be determined that the discretion should be exercised so as to give effect to the objection even although it is not a strong one because of the extent of the child's age and maturity or because there are other considerations, such as those involving the child's immediate welfare, which weigh in favour of doing so. In the latter case, if the approach in W v W were followed, the gateway may not be passed on the basis that the child's views were not strongly expressed and the court would then have disabled itself from exercising the discretion available. Numerous other examples come to mind but all in the context of the 3 stage approach being adopted of considering age and maturity as a discrete issue, separate from that of whether or not the child's views on the matter of return are such as should be given effect to, in all the circumstances of the case.

Application of Article 13 in the present case:

[38]      Counsel for the petitioner sought to persuade me that I should follow the approach to the interpretation of Article 13 set out in W v W but given the weight of authority to the contrary effect, I do not consider that it would be appropriate to do so. Rather, in considering the facts of this case, I propose to ask:

1. Does S object to being returned to Ireland?

2. Is S of an age and maturity at which it is appropriate to take account of his views?

3. If the answers to 1 and 2 are in the affirmative, whether I should exercise the discretion available to me and refuse to order his return? This involves considering questions of comity, convenience and the general principle that it is in the best interests of a child that his welfare be determined by the court of his habitual residence. A review of the authorities to which I have referred, other than W v W, indicates that this also involves me considering why, if he does, S objects, the strength of any such objection, whether any objection is independent of the views of his mother, whether he appreciates that the purpose of the order for return to which he objects would be to enable the court in Ireland to decide on his future, and his welfare in the immediate future.

[39]      As regards the first question, it was not disputed that S objects to being returned. As regards the second question, it was not disputed that S is of an age and maturity at which it is appropriate to take his views into account. That was, it seemed, a concession well made given the evidence from Mrs B to the effect that he was above average intelligence and of the requisite maturity, his good school reports, and the references in the affidavits to his being an articulate boy. That means that I have to consider the matters arising under the third question.

[40]      Mrs B had interviewed S at school, prepared a report ( no.21 of process) and gave oral evidence. There was, unfortunately, a misunderstanding on her part, regarding what would happen if S was returned to Ireland and she acceded to an idea that seemed to have come from S to the effect that he would be put in an institutional children's home, away from either parent. That misunderstanding was, however, clearly corrected by S's agents and it is evident from his original and supplementary affidavit that his views were not dependent in any way on the initial misunderstanding. In any event, when he spoke to Mrs B, it was clear that that had not influenced him in his thinking. His objection to returning to Ireland was rooted in a strong dislike of the school there arising partly from the fact that he was bullied and teased and partly from a lack of friends, in circumstances where he had left behind a group of friends in Helensburgh, with whom he has now been reunited. He also disliked living in a rural area.

[41]      Counsel for the petitioner submitted that questions arose as to the validity and strength of S's views as reported by Mrs B as they were expressed in terms of preferences rather than objections and that he said that his preferred option was to live with both his parents in the same country, with no money worries, without specifying Ireland. Mrs B had assumed, because of the context of their discussion, that he meant Ireland but that had not been articulated by S. He also submitted that questions arose as to whether or not S's views were the result of his mother's influence. Mrs B had considered whether they were the result of express coaching but had not taken account of the risk of more subtle influences coming to bear. Further , he made a submission which seemed to suggest that I should approach S's affidavits as though his representation were partisan in nature but which ultimately was to the effect that I should bear in mind that they were not expressed in child's language. If S were returned to Ireland he would, it was submitted, be returning to his old home and a familiar school where, according to the petitioner and the headmaster, he had friends. Reference was also made to an affidavit from the headmaster that denied that S had had problems of the sort detailed by him to Mrs B and in his own affidavits. I should, in all the circumstances, grant the order sought.

[42]      On behalf of S, it was submitted that his objection should be given effect to and the order for return should be refused. I should, it was submitted, attach some weight to what was contained in S's affidavits , bearing in mind that they had been prepared by solicitors who are responsible professionals with considerable experience of acting for children and who were conscious of the duty that they owed to the court. Mrs B's evidence could not cover all the background detail, her remit being circumscribed, and the affidavits fulfilled that function. S's objection was a strong one. They were based on his perception of where he was best placed educationally, where his peer group were and a history of unhappiness in Ireland both in terms of the circumstances of the family's first house and, in particular, his experiences of being bullied and teased at school and lacking friends. His view was independently expressed. He understood what would be the purpose of his return but persisted in his objection. He regarded himself as Scottish, he felt comfortable in Scotland and he wanted to stay here in circumstances where he had kept up his links with Scotland whilst living in Ireland and was clearly glad to be back.

[43]      I am satisfied that this is a case where notwithstanding the policy of the Convention, I should exercise the discretion that arises so as to refuse to grant the order sought. S clearly objects to returning and he does so for reasons which are of substance, not capricious and not, in my assessment, the result of his mother's influence, albeit that they accord with her wishes to stay here. He does understand what would be the purpose of the order for return. I saw no reason to doubt the veracity of his affidavits which had been prepared by experienced solicitors acting for him, not his mother and I noted that there were a number of passages in them which appeared to be an attempt to record accurately S's own language. Mrs B was also a credible and reliable witness and I had no reason to doubt the correctness of her assessment of S's views and the reasons for them. Whilst it may be that his views as to his preferences in life were expressed in general terms of who he wanted to be with rather than where he wanted to be, there was ample recording by her of articulate objection to the features of S's life in Ireland to which I have already referred.

[44]      There is full statement and explanation in S's affidavits and in what he explained to Mrs B to the effect that he was unhappy at school in Ireland and lacked friends. To some extent that is backed up by the evidence that, in his first year, he was absent for 20 days and in his second year, for 12 days without any medical reason for those absences being advanced. The first respondent also makes reference in one of her affidavits ( no.7/1 of process ) to S having "tummy aches" and headaches, to her struggling to get him to attend school and to him refusing to stay for lunch with the other children. More generally, she is adamant, it seems, that he was not happy at school in Ireland. Particularly telling though is S's e-mail to his father sent on 14 September 2004 (no.20/2 of process), which responds to one in which the petitioner had indicated that all the paperwork was in place so he hoped that S would be back in Ireland soon. S's e-mail reads:

"Dad what papers do you mean? Please I really want to stay in Scotland all my friends are here except K and I'm playing rugby here I really want you and the cats to come over here to live".

[45]      That S was unhappy at school and considered that other children there picked on him is also supported by the affidavit of his sister, J M ( no.7/3 of process) and, to an extent by the impression that the petitioner's friend K F had gained (no.7/2 of process ). B McD's affidavit ( no.7/8 of process) paints the same picture. She was someone who had become acquainted with the petitioner in Ireland and who had children at the same school who knew S. Further, Mrs B's explanation in evidence of the importance of the peer group to a boy of S's age, lends credence to his having been unhappy where he lacked such a resource, particularly in circumstances where, as is evident, he knew that he did have it available to him in Helensburgh. The evidence contained in a number of affidavits including those of his sister, C S, and M M was plainly to the effect that he is very happy to be back there with his old friends.

[46]      It also seems to be of significance that S's feelings about his school and friends are such as to lead to him maintaining his objection to returning to Ireland notwithstanding his clear expressions of love for his father and his wish that he could see him every day all in circumstances where, as is evident from one his e-mails, the petitioner has sought to impress on S that he cannot return to Scotland because of his business and because he has no house here to return to. In short, his views appear to be firm and strong and they are cogent whether tested in terms of asking what is his perception or what appears to be the factual state of affairs. On the evidence presented, particularly that from B McD, S would seem to have justification for his dislike of the school in Ireland and for his feeling that he lacked friends there.

[47]      The circumstances of S's return to Scotland are highly regrettable. The precipitate actions of the first respondent are to be deprecated. This is a child who is very attached to both his parents and it is clear from Mrs B's reports and her evidence that, above all, he needs to be freed from exposure to parental argument. That means that he needs them to act in a responsible and mature manner in matters relating to his welfare, in consultation with each other. As the policy of the Convention reflects, it is regarded as highly undesirable that one parent effect any significant change in the arrangements for care of a child without reference to the other.

[48]      However, S is now 12 years old. He has returned to Scotland, where he spent the first 9 years of his life and, in particular, to the town where he lived for some 5 years before moving to Ireland, a move which, according to his affidavit, he had thought would be on the basis that they could return to Scotland if they did not like it there. He has spent over half a term in the first year at school in Helensburgh, leaving primary education behind and he appears to be coping well with the demands of senior school. He has renewed old friendships and become involved in a number of extra curricular activities. He is positive and enthusiastic about his present circumstances notwithstanding that he and the petitioner have been living at various different temporary addresses and have not yet secured permanent accommodation which also tends to suggest that happiness at school is a matter of paramount importance in the perceptions of this child. Were I to order his return, his ongoing education would be immediately disrupted in a manner that would involve him returning to a primary school in Ireland which he disliked, where he was unhappy, where he has only one friend, and to a rural environment about which he feels very negative. There would thus be an immediate and detrimental effect upon his welfare.

[49]      These are, in my judgment, exceptional circumstances and I am persuaded that I should exercise my discretion by refusing the prayer of the petition.

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