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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 70
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P437/06
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OPINION OF LADY
CLARK OF CALTON
in the Petition of
R.H.
Petitioner;
against
V.H.
Respondent:
for
An Order under the
Child Abduction and Custody Act 1985
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: J Mitchell, QC, Innes; Bonar Mackenzie, W.S.
Respondent: MacNair, QC, Speir; Bishops
5 May 2006
[1] The
petitioner is the father of the child who is the subject of dispute. He raised proceedings under the Child
Abduction and Custody Act 1985 seeking an order for the return of said child in
terms of Article 12 of the Convention on the Civil Aspects of
International Child Abduction. The
respondent, who is the mother of the said child, opposed the petition. There was preliminary procedure in March 2006,
including an order that further evidence, including oral evidence, be
heard. The case came before me for a
second hearing on 20 April 2006.
Legislative structure
[2] Under
and in terms of section 1(2) of the Child Abduction and Custody Act 1985 and Schedule 1,
the Convention on the Civil Aspects of International Child Abduction signed at the
Hague on 25 October
1980, has the force of law within the United
Kingdom.
It is provided inter alia:
"Article 3
The removal or
the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody
attributed to a person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was habitually resident
immediately before the removal or retention;
and
b) at the time of removal or retention
those rights were actually exercised, either jointly or alone, or would have
been so exercised but for the removal or
retention.
The rights of
custody mentioned in sub-paragraph a) above, may arise in particular by
operation of law or by reason of a judicial or administrative decision, or by
reason of an agreement having legal effect under the law of that State.
.....
Article 12
Where a child
has been wrongfully removed or retained in terms of Article 3 and, at the
date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period
of less than one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the child
forthwith.
The judicial or
administrative authority, even where the proceedings have been commenced after
the expiration of the period of one year referred to in the preceding
paragraph, shall also order the return of the child, unless it is demonstrated
that the child is now settled in its new environment.
...
Article 13
Notwithstanding
the provisions of the preceding Article, the judicial or administrative
authority of the requested State is not bound to order the return of the child
if the person, institution or other body which opposes its return establishes
that -
a) the person, institution or other body
having the care of the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her
return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.
...".
Procedural Hearing
[3] It was a matter of
agreement between the parties that the only oral evidence which might
potentially be led was the evidence of the petitioner and the respondent, who I
understand were both present in court.
There were affidavits from the petitioner and respondent and also a
number of other witnesses, including various productions, some of which were
referred to in affidavits and others which were not.
[4] Various
matters were conceded on behalf of the respondent: (1) that the petitioner had rights of custody
in terms of New Zealand law; (2) that said
child was habitually resident in New Zealand immediately before her removal
from New Zealand to Scotland, where she presently resides with the
respondent; (3) the removal of said
child is to be considered wrongful for the purposes of Article 3 of the
Convention; (4) that paragraph (1) of
Article 12 was fulfilled and that unless the respondent could bring herself
within the terms of Article 13 of the Convention, the Court must order the
return of said child forthwith. Senior counsel
for the petitioner accepted this analysis.
In consequence the evidence and submissions focussed on issues relating
to and arising from Article 13.
Senior counsel for the respondent further clarified that in relation to
Article 13(a), he founded only on that article in relation to
consent. His case was that the
petitioner had consented to the removal of said child from New
Zealand to Scotland. In relation to Article 13(b), senior
counsel founded on this only to a limited extent offering to prove that there
is a grave risk that said child's return would place the child in an
intolerable situation. He did not
contend that there is a grave risk that said child's return would expose the
child to physical or psychological harm.
I was grateful to both counsel for trying to focus the case and it was
against that background that oral evidence was led.
[5] In
acknowledgement of the burden of proof on the respondent, the respondent led
evidence. The respondent gave oral
evidence which was cross-examined and re-examined in the usual way. At the end of her evidence, senior counsel
for the petitioner stated that he did not propose to lead any oral evidence
from the petitioner. Senior counsel for
the parties made submissions on the oral and affidavit evidence before the
court. It was not disputed that I was
entitled to consider all the affidavits including those given by the parties
and the oral evidence of the respondent and the productions.
Submissions on behalf of the respondent
[6] It
was submitted that the issue of consent and the proof of the facts and
circumstances in relation to any consent were critical in the case. Senior counsel for the respondent drew
attention to the fact that the respondent, unlike the petitioner, had given
evidence in this case and invited the court to approach the affidavit evidence
of the petitioner in the same spirit as the Lord Ordinary in Bowie v Bowie, unreported, 23 March 1989. In said case a defender in a divorce case
where financial conclusions were in dispute gave oral evidence but at a
continued hearing declined to continue his evidence and was not therefore cross-examined. The Lord Ordinary said:
"I consider that
the only way in which I could appropriately have taken into account anything
said by the defender in such evidence-in-chief as he gave was by way of taking
into account anything said by him adverse to his interests. On this basis, I propose simply to ignore the
evidence for the defender."
I was invited in considering the
affidavit of the petitioner (6/5 of process) and the supplementary affidavit
(6/41 of process) to accept only those parts of the affidavits which were
against the interest of the petition. In
particular I should accept the evidence of the petitioner that he agreed to the
return of the respondent and said child to live in to Scotland. It was submitted that there was nothing in
the affidavit evidence of the petitioner to suggest that he had ever changed
his mind about the return of the respondent and said child to Scotland. That was all against a background of
arrangements being made to sell the parties' house in New
Zealand and obvious preparations, for
departure such as the packing of boxes in the matrimonial home, in January
2006. In addition, reference was made to
the evidence of Kathleen Aird (7/8 of process), Iain Aird (7/9 of process),
Raymond Kirkpatrick (7/12 of process), Edna Stanley (7/14 of process) and Maria
Hamilton (6/38 of process). Senior
counsel for the respondent said that although there was some difference in
detail in the evidence about the consent, plainly there was evidence of consent
not only from the parties themselves but testified to by family members, friends and business associates. He conceded that on the evidence it was not
possible to found a case based on some consent being given by the petitioner
before the parties and said child moved to New
Zealand.
He said that his case was based on the consent given by the petitioner
in November 2005 and the discussions and agreement to defer departure to March
2006. Senior counsel for the respondent
said that on the evidence it should be accepted that the move to New
Zealand was a two year working holiday, as
that was relevant both to background and to any exercise of discretion. He founded upon the respondent's evidence and
the evidence of Kathleen Aird (7/8 of process), Iain Aird (7/9 of process),
Mark Russell (7/11 of process), Raymond Kirkpatrick (7/12 of process) and
Maureen Jackson (7/4 of process). He
also pointed out that the evidence was that when the parties left return
tickets were purchased.
[7] Against
that background it was submitted on behalf of the respondent that the
respondent required to establish on a balance of probabilities that there was
unequivocal consent by the petitioner.
Consent is not to a particular flight or to a particular date. The issue is whether or not the petitioner
consented to the child being moved from the place of habitual residence to the United
Kingdom.
The date of March was not essential to the consent. Looking to the history of the consent, it was
plain that "the key was given" by the petitioner to the respondent in November 2005. The respondent agreed to wait until March 206
and use the key at a date later than November 2005. The fact that she used it in January 2006
rather than March is irrelevant.
Reference was made to Zenel v Haddow 1993 S.C. 612 and Baxter v Baxter United States Courts of Appeal for the Third Circuit
(No.04-3228) May 26, 2005. While accepting that in examining a consent
defence, it is important to consider the nature and scope of the petitioner's
consent and any conditions or limitations, in this case it was submitted there
were no conditions. What the petitioner
consented to was that the respondent and said child should return to Scotland
not for a holiday or some limited purpose but for residence and the March date
was of no material significance.
[8] I
was then addressed about the proper approach which should be followed if I
concluded that there was consent for the purposes of Article 13. Article 13 provides a discretion as to
whether or not the court must order the return of the child. Senior counsel relied on KT v JT 2004 S.C. 323,
Lord President at paragraph 32-34 and Singh
v Singh 1997 S.C. 68 emphasising
that the welfare of the child is a consideration. In this respect senior counsel accepted that
the matter should be approached broadly, taking into account, for example, the
Scottish background of the parties, close family members resident in Scotland,
that the period in New Zealand was a two year working holiday, that the
respondent has always been the primary carer, the age and dependency of the
female child, that the child is now well-settled in Scotland and that there are
no allegations of any risk to the child living in Scotland with the respondent
and the respondent's mother. The
distress and upheaval of a return to New Zealand
and the indifferent attitude of the petitioner who, since he came to Scotland,
had turned down the access offered, albeit it it was limited and supervised
were also submitted as factors to be taken into account.
[9] I
was then addressed on the outstanding issue in relation to Article 13(b)
as to whether there was a grave risk that the return of the child would place
the child in an intolerable situation.
It was accepted by the respondent in evidence that if an order was made
for the return of the child she would also return to New
Zealand to look after the child. In her evidence there was some discussion
about her practical difficulties under reference to earlier discussions in the
letter dated 9 March 2006
(6/48 of process).
Submissions of behalf of the petitioner
[10] Senior counsel for the petitioner did not accept that there was
any evidence of grave risk for the purposes of Article 13. He submitted that, nevertheless, the
petitioner remained willing to make various undertakings. These undertakings lodged in process on 21 April 2006 stated on behalf
of the petitioner that pending orders of the New
Zealand court:
"1. He will not attempt to
obtain custody/residence of said child without the sanction of the New
Zealand courts;
2. He will not seek an order
from the New Zealand
courts in respect of the care arrangements for said child without the
Respondent having the opportunity to be heard and represented in such
proceedings;
3. He will allow the
Respondent and said child exclusive and peaceable occupation of the matrimonial
home, 5 Olive Court,
Blenheim;
4. He will not attend at the
matrimonial home without the consent of the Respondent;
5. He will meet the mortgage
and other utility bill payments in respect of the matrimonial home;
6. He will pay the Respondent,
at her choice, either an additional sum of $130 per week or a lump sum of
$500 on her arrival in New Zealand (for the avoidance of doubt, the sums are
expressed in New Zealand dollars); and
7. He will meet the day care
fees for said child to attend John Street Preschool, Blenheim;
These
undertakings will not be varied or withdrawn until the New
Zealand courts have considered the
appropriate arrangements for the care of said child, but cease at that point
unless those courts hold that they should be renewed. The giving of these undertakings is not a
concession that they are to any extent necessary or appropriate and they are
given on the understanding that they will not be relied on in the New
Zealand courts as indicating any such
concession, they being given simply as a holding measure."
[11] Turning to the consent defence, it was submitted that the
concession that there was a breach of the petitioner's custody rights and that
the child had been removed from the place of habitual residence were serious
matters. Whatever the respondent means
by a working holiday must be interpreted in relation to these concessions. Senior counsel for the petitioner submitted
that the court must look at the evidence as a whole, taking into account the
oral evidence and the affidavit evidence.
So far as credibility and reliability is concerned, the respondent is
not entitled to preference merely for giving evidence. In relation to the evidence it was accepted
that there was a great deal of evidence that one way or another the family
would come back to Scotland
in March 2006, albeit not necessarily at the same time and not necessarily with
the same hopes and expectations. But,
that arrangement was quite different from what the respondent did. It was plain from her evidence that she was
not under any illusion about that. She
wanted to do a different kind of move, not a family move but a move in breach
of the petitioner's custody rights. Her
actions were plainly clandestine and deliberately concealed from the respondent. In addition, on returning to Scotland
she was conscious that the petitioner would want said child to be returned to New
Zealand.
In commencing court action in Scotland
for a residence order and interdict against the respondent (6/30 of process) she
made no claim that there was consent in November 2005 for a return to Scotland
with said child. It is the petitioner's
own knowledge that there was no consent which gives rise to her concerns that
the petitioner would want the return of said child. It is impossible for the respondent to
explain why if she had continuing consent from November 2005 that she required
to remove said child in a clandestine way.
In this case there was no consent to an arrangement whereby the
respondent broke up the family and moved herself and said child from a family
situation to a situation whereby the petitioner was separated from said child without
knowledge or notice. There was no
discussion by the parties prior to the removal of said child about the welfare
of the child in the event of a separation.
Senior counsel for the petitioner relied on in Re H 1998 AC 72 at p.87 and P v P 1998 2 F.L.R. 835
to illustrate the proper approach to consent.
P v P, he submitted, was on all fours with the present case.
[12] Finally, in relation to the exercise of discretion for the
purposes of Article 13, he accepted that welfare was a component but
pointed out that the decision-making still falls within the ambit and purpose
of the convention. In this case he said
all the witnesses about the recent history and welfare of the child are in New
Zealand.
There is an application by the petitioner for a parenting order in New
Zealand and it is not disputed that the New
Zealand court has jurisdiction. Clearly there is considerable inconvenience
to the respondent if she returned to New Zealand. But that equally applies to the petitioner
and his work is in New Zealand. He has made undertakings to minimise the
inconvenience. Any discretion should be
exercised in favour of an order to return said child.
The evidence and the facts
[13] It is a difficult task to try to
assess evidence based on affidavits and oral evidence from the respondent
only. I was not prepared to follow the
approach adopted by the Lord Ordinary in Bowie v Bowie as I
considered that case was very different in its circumstances. In this case the Court approved both
affidavits and oral evidence but the petitioner was under no obligation to give
oral evidence. He did not give oral
evidence. I drew no adverse inference
from that and considered that the petitioner's affidavit should be given full
consideration along with the other evidence in the case. Much of the evidence in the affidavits was
not focused on the issues which were argued before me and I have not attempted
make findings about all the disputed allegations which the parties make.
[14] The facts which I consider relevant to the present case are as
follows: The petitioner and respondent
were married in Annan on 16 September
1998. The child of the
marriage, a daughter, was born in Scotland
on 10 August 2002. Prior to 2004 both parties lived and worked
in Scotland and
they both have relatives and friends in Scotland. The petitioner's mother, is from New
Zealand but has lived for many years in Scotland. The petitioner has some relatives in New
Zealand and prior to 2004 he had visited for
some months. He has dual nationality as
a citizen of New Zealand
and Scotland. In 2004 the parties made arrangements to move
to live in New Zealand
with said child. There was some
discussion about a two year period as a trial period, after which the family might
move back to Scotland
if the move was not a success. There was
no discussion as to what would happen if the marriage broke down. In preparation for the move the parties sold
their house in Scotland,
gave up their jobs and made all the other necessary arrangements for
departure. On arrival in New
Zealand in November 2004 they stayed with
relatives of the petitioner before renting accommodation for a short period. In early 2005 they purchased a house in
Blenheim, Marlborough, New
Zealand in which they resided with said
child. After a few weeks the respondent who
is qualified as a nurse obtained employment working nightshift three nights a
week. The petitioner thereafter obtained
full-time employment as an architectural assistant with Opus Construction. Said child attended pre-school part-time. The respondent was the main carer for said
child. After a few months in New
Zealand, the respondent became unhappy as she
found it difficult to adjust and she was unhappy with her marriage. It was agreed by the parties that she would
return to Scotland
for a holiday for a few weeks in June 2005.
During that time said child was booked into pre-school full-time and the
petitioner was responsible for her care.
During the period up to November 2005 the parties had discussions about
the possibility of returning to Scotland.
[15] The above narration is a summary of the factual history which
is not, I think, in dispute. I now turn
to deal with the facts relating to the alleged consent given by the petitioner
in November 2005. The respondent dealt
with this in her affidavit (7/1 of process which is identical to 7/7 of
process). Her position in
paragraph 3 is that it was agreed by the parties that the respondent and
said child would return home in November 2005 leaving the petitioner in New
Zealand to sell the matrimonial home, cars
and other possessions. She purchased her
ticket using money from the parties' joint account with her husband's full
knowledge and consent. Her mother agreed
to pay for said child's ticket and the respondent thought this was a good
idea. No documentation was provided to
vouch the dates and method of purchase.
The respondent's mother stated in her affidavit:
"My daughter
advised me that she had spoken to L. and he had agreed that they would return
to Scotland in
November 2005. When I spoke to L. myself
he confirmed this. He still of course
has his return ticket. My daughter
purchased her ticket on 11 October
2005 but as there was insufficient money in the joint credit card
account L. agreed that I should purchase C's ticket from my own credit card
account as a Christmas present. I
discussed this with both L. and V. at the time.
They were both happy that I was to do this."
(7/2 of process which is the same
as 7/8 of process). The respondent's
brother stated:
"Initially my
sister and C. were to return in November 2005.
I had discussions with L. about this.
He was to stay behind, sell the house and return in April 2006 via Los
Angeles, as he wanted to visit an uncle out there who
had a Harley motor cycle. L. wanted to
ride it and then return to Scotland."
(7/9 of process, paragraph 3). In oral evidence the respondent's position
was that she had ongoing discussions from June 2005 with the petitioner as she
wanted to return to Scotland. He wanted to stay in New
Zealand.
She was very vague as to how it came about that the petitioner allegedly
changed his mind and about details of the arrangements and the dates thereof. She said that she purchased her return ticket
using the joint credit card provided by the petitioner for that purpose. There was still a return ticket for said
child. But when the petitioner's mother
persuaded her to defer the flight to March 2006, said child's ticket had
expired and the respondent's mother purchased a ticket for said child. The petitioner in his affidavit stated that
the respondent booked tickets to return to Scotland
in approximately September/October 2005 and that this was without his knowledge
and that he was very upset. (6/7 of process).
In his supplementary affidavit (6/41 of process, paragraph 5), he
confirms that he did not have any involvement in the purchase of either ticket
and gives further details about the ticket purchase which he said was done on
the respondent's card. In view of the
conflict in the evidence and the lack of any explanation from the respondent
explaining the circumstances in which the petitioner was alleged to have
consented to all this in November 2005, I am not persuaded that the petitioner
consented in advance to the travel arrangements being made for the respondent
and said child in November 2005. Nevertheless
I conclude from the petitioner's own affidavit (6/7 of process, paragraph 12)
that he did thereafter agree the arrangements made by the respondent.
"Accordingly we
arranged for V. and C.'s flights to be transferred to the end of March 2006 so
that she could return to see what her preferred option for living was, with my
mother who was coming to New Zealand for a holiday and returning to Scotland in
March 2006".
I regard this as an important
statement of the petitioner's position which I accept. It appears plain from the evidence of the
parties and the petitioner's mother that following the purchase of tickets by
the respondent in about November 2005, there were further discussions between
the parties which resulted in agreement by both parties that the respondent and
said child should delay any return to Scotland
until March 2006. This was partly to
allow said child to enjoy the New Zealand
summer months and also to enable the respondent and said child to travel back
to Scotland
with the petitioner's mother who was coming in March for a holiday in New
Zealand.
Thus in a sense the respondent did have the petitioner's consent to
return to Scotland
with said child. But I am also satisfied
on the evidence that the consent was given only in the context of a family
arrangement agreed by the parties. It
was plain from the respondent's oral evidence in cross-examination that she had
no consent to remove said child to live in Scotland
if the move was not part of a family arrangement but the result of her own
unilateral decision to separate from the petitioner and break up the marriage. The respondent's oral evidence was that up
until January 2005 arrangements were being made for the return of both parties
and said child to live in Scotland
albeit the petitioner was not to return in March but at some later date after
he had sold the matrimonial home and dealt with other practical matters. It was also envisaged that the parties might
have to live separately in Scotland
for a period until family accommodation was obtained. In cross-examination the respondent was totally
unable to give any satisfactory explanation as to why if she had the consent of
the petitioner, she had taken steps to conceal her departure to Scotland
in January when she took said child without telling the petitioner in advance. Eventually she accepted that there was no
agreement to take said child to live in Scotland
in the event that the marriage failed and she decided to leave. She also accepted that she knew the
petitioner would object if he had been told by her that she was separating from
him but taking said child. I also accept
the respondent's evidence that she believed that the petitioner intended to
return to Scotland
because that is what he told her. She
thought that if she went to Scotland
in January, the petitioner would also return to Scotland. The evidence from the petitioner's mother is
to the effect that her son did not intend to return to Scotland. I concluded from the petitioner's affidavit
evidence that his preferred option was to stay in New
Zealand and he was waiting to see what
happened and what the respondent wanted to do.
I consider that the petitioner expressed different views about his
intentions from time to time. Plainly
the parties were not communicating well and whether deliberately or not, the
respondent was misled by the petitioner about his intentions. I also accept the evidence of the parties
that there were tensions and problems in the marriage. There is no evidence that there was
discussion resulting in any agreement as to what would happen if the parties'
relationship broke down and one or both of the parties wished a
separation. That lack of discussion and
lack of consensual arrangement in the event of separation never changed. Meanwhile the parties' relationship remained
variable and the respondent certainly suffered stress and anxiety. It is to the great credit of the respondent
that she did not hesitate to say in evidence that she would return to New
Zealand to care for said child if that was
the order of the Court. She was plainly
concerned, as the main carer for said child, to ensure continuity of care
despite her own obvious distress and concerns about a return to New
Zealand.
I accepted the respondent as a credible and reliable witness in relation
to the issues about consent with which I have dealt except in relation to the
events in November 2005 as I have explained.
In cross-examination I considered that she was attempting to avoid some
of the questions but in the event she answered the questions and her own
testimony was not helpful to her position.
Most of the detail about the history post November 2005 came only from
the respondent and emerged in cross-examination.
[16] I turn now to consider whether the petitioner "has consented
to" removal of said child for the purposes of Article 13 of the
Convention. Bearing in mind the general
approach to this question in Zenel v Haddow I accept that the mere fact that
the petitioner did not give consent to the actual removal in January 2006 is
not of itself destructive of the respondent's defence. I take from the principles of the cases cited
to me and referred to paragraph 11 that the matter must be looked at more
generally to consider whether or not the respondent has proved on a balance of
probabilities that looking to the subjective intention of the petitioner, did
he in fact consent to the removal of said child in the circumstances of the
case. My conclusion is that he did
not. I consider that the high
point of the case for the respondent is paragraph 12
of the affidavit of the petitioner. (6/7
of process). I can find no evidence in
the case to support a view that the arrangements made were agreed by the
petitioner as anything other than a family arrangement in the context of a
continuing matrimonial relationship in which the petitioner exercised parental
rights along with the respondent.
Consent in that limited context is, in my opinion, very different from a
situation where a parent gives an unequivocal and unqualified consent intended
to cover the removal of a child from the place of habitual residence to another
country in any circumstances or at least the circumstance which actually
occurred. It is also different from the situation
which arose in Zenel v Haddow where it was determined that the
consent to removal existed because of a prior agreement which depended upon a
particular state of facts. I think the
submissions on this point by senior counsel for the petitioner are well
founded. This is not a case in which the
petitioner expressly or impliedly agreed not withdraw his consent before March
2006. He was at liberty at any time to
change his mind. It was because the
respondent knew that the parties' agreement did not cover the new situation of
marital break up that she resorted to the clandestine removal of the child. She knew that the petitioner would object to
the removal of said child in such circumstances. In my opinion, the clandestine removal
plainly points in this case to the absence of consent by the petitioner.
[17] If I had found in favour of the respondent in relation to
consent, I would have exercised my discretion in her favour and refused to make
an order for the return of said child to New
Zealand.
I am of the opinion that all the factors referred to in paragraphs 8 and
12 are relevant and have considered them.
The matter is finely balanced. I
am particularly influenced by the fact that litigation has been raised by the
petitioner in New Zealand
but that is outweighed by other factors.
Both the parties, the child and relatives have a strong connection with Scotland
and they have lived for a relatively short period in New
Zealand.
The primary carer will be very distressed and upset at a return to New
Zealand and I have found that the petitioner
has misled her about his intention to return to Scotland.
[18] In view of my decision about consent, the issue about Article
13(b) does not arise. In any event
standing the undertakings which have been given, I do not think there is any
stateable case that the return of the child would place the child in an
intolerable situation.
[19] In all the circumstances therefore I shall grant an order for
return of said child to New Zealand
in terms of the Child Abduction and Custody Act 1985. The case will call By Order to determine the
final arrangements for return of said child.
