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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PW v. AL [2003] ScotCS 225 (07 August 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/225.html Cite as: [2003] ScotCS 225 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Johnston Lord Menzies
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P1431/02 OPINION OF THE COURT delivered by THE LORD PRESIDENT in RECLAIMING MOTION for PETITION and ANSWERS by P. W. Petitioner and Reclaimer; against A.L. or W. Respondent; for An Order under the Child Abduction and Custody Act 1985 _______ |
Act: Davie; Drummond Miller, W.S. (Petitioner and Reclaimer)
Alt: Moir; Balfour & Manson (Respondent): Mundy; Mowat Dean (H.W.)
7 August 2003
[1] On 12 June 2003, for the reasons given in its Opinion of that date, the Court ordered the return of the four children to the jurisdiction of the Family Court of Western Australia, but superseded extract and execution of its interlocutor until such time as it was satisfied as to the availability, extent and commencement of the visas necessary for the return of the respondent and the children to Australia. The matter of visas was the subject of a number of subsequent hearings. We now have before us a letter to the respondent from the Migration Branch of the Australian High Commission in London dated 30 July which states that these visas were granted on 28 July. Having heard parties today we have authorised extract and execution of the interlocutor of 12 June. [2] A number of observations about the visas were made on behalf of the respondent and the child H. First, it was said that the visas were for only one year, whereas the proceedings before the Family Court might take longer. Secondly, it was emphasised that the visas, and in particular those of the children, were subject to the condition that the holder must not engage for more than 3 months in any studies or training. Further, the holder would not be able to have access to Medicare. It was pointed out that the children needed the continuation of their school education, and H had special health needs. It was a further condition that the respondent must not engage in work in Australia. She would be dependent on the petitioner for her support. [3] These limitations flow from the fact that the visas are tourist visas (for which the normal maximum period is one year). However, the only way in which the respondent and the children can obtain authority to enter Australia is by their having tourist visas. The family originally entered Australia on the petitioner's business visa and not as immigrants. As a consequence of her separation from the petitioner the respondent and the children are no longer covered by his visa. [4] As regards the duration of the visas, we understand from a letter from the Australian High Commission to the respondent's solicitors dated 25 July that there may be circumstances in which the holder of a visa may be permitted to remain in Australia beyond the expiry of the authorised period. This is obviously a matter for the Australian authorities to decide in the light of the circumstances at the time. In regard to the other limitations to which we have referred, we noted that counsel for the petitioner stated that, as soon as the children were in Australia he could, by virtue of the order which this court has made for the return of the children, apply for them to be included in his visa as his dependents, and would do so. If that was done, it would remove the restrictions on access to schooling and Medicare. Counsel for the respondent and H raised a question as to whether H could be covered in this way, in respect that she was not a child of the petitioner. However, it is difficult to believe that this would be an obstacle in view of the fact that she was previously treated as a member of the same family group, and that the petitioner's parental rights apply to her as well as to the other children. In any event, if it proves to be the case that H cannot be covered in this way, it is a matter for the Family Court to determine the payment which the petitioner should make for her schooling and medical care. While she was in Australia she attended an independent school. [5] We are not persuaded that the matters raised on behalf of the respondent and H are such as lead us to the view that the substance of the condition attached to the Court's interlocutor is not satisfied. It is essential to bear in mind that it is for this court to fulfil its duty to order return where it is satisfied that the children were wrongfully removed from the jurisdiction of the Family Court, and that it is not for this Court to arrogate to itself the function of determining questions relating to the care and maintenance of the children, which belongs to the Family Court. [6] Before parting with this case we would point this out for the attention of the Australian authorities. It is unfortunate that for the present type of case there is no type of visa which is really appropriate. The need to resort to use of tourist visas creates undesirable bureaucratic difficulties. We trust that in the present case, standing the obligations of Australia and the United Kingdom under the Hague Convention, the authorities will exercise their powers in a flexible and understanding manner. It is particularly important that those who deal with visas should be alive to those obligations.
