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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PBW v. AGL [2004] ScotCS 89 (06 April 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/89.html Cite as: [2004] ScotCS 89 |
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OUTER HOUSE, COURT OF SESSION |
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P160/04
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OPINION OF LORD HARDIE in the Petition of P.B.W. Petitioner; against A.G.L. or W. First Respondent; And H.W. Second Respondent: for an Order under the Child Abduction and Custody Act 1985
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Petitioner: Kelly, Advocate; Drummond Miller, W.S.
First Respondent: Beynon, Advocate; Beveridge & Kellas
Second Respondent: Mundy, Advocate; Mowat Hall Dick
6 April 2004
Introduction
[1] The petitioner and first respondent were married at Aberdeen on 8 November 1996. There are four children of the marriage, namely H, the second respondent, born on 4 July 1993 (a child of the first respondent by a previous relationship and accepted into family by the petitioner), A and D, both born on 14 March 1996 and F born on 3 December 1999.[2] The petitioner and the first respondent emigrated with their then children to Australia in April 1998 and lived together with their children until November 2001 when they separated. In or about January 2002 the first respondent removed the children from Australia and the petitioner sought their return under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (hereinafter referred to as "the Convention") to which the United Kingdom and Australia are both signatories. In terms of section 1(2) of the Child Abduction and Custody Act 1985 (hereinafter referred to as "the Act") the Convention has the force of law in the United Kingdom and by subsequent Order in Council was brought into force as between the United Kingdom and Australia. By order of this court dated 12 June 2003 the children were to be returned to Western Australia in terms of Article 12 of the Convention. Following sundry procedure the first respondent returned to Western Australia with the children on 21 August 2003. The earlier proceedings before this court are reported as W v W 2003 S.L.T.1253.
[3] On 16 September 2003 the petitioner applied to the Family Court of Western Australia (hereinafter referred to as "the Family Court") inter alia for a residence order in respect of the four children, for a contact order ad interim and for reduction of the maintenance payable by the petitioner to the first respondent. On 17 September 2003 the first respondent applied to the said court for orders in relation to increased maintenance, child welfare issues and relocation. By order dated 1 October 2003 at the Court of Petty Sessions, Perth (7/23 of process) the petitioner was allowed supervised contact with the children at the times and dates specified in the order, maintenance for the first respondent was fixed at the rate of A$650 per week and a further hearing was fixed for 20 October 2003 at which hearing the children were to be separately represented. On 19 October 2003 the first respondent removed the children from Western Australia without the knowledge or consent of the petitioner and returned to Scotland. On 20 October 2003 the Family Court listed the case for a pre-trial conference on 3 December 2003 and for an expedited trial at "not before 17 December 2003". Reference is made to a letter from the Principal Registrar dated 3 December 2003 (7/33 of process). Prior to the first respondent's departure from Western Australia on 19 October 2003 the petitioner did not have any contact with the children on the dates and times specified by the Court of Petty Sessions in the order dated 1 October 2003.
[4] In these proceedings the petitioner seeks an order under Article 12 of Schedule 1 to the Act for the return of the children H, A, D and F to the jurisdiction of the Family Court.
The Convention
[5] The Convention, so far as set out in Schedule 1 to the Act, has the force of law in the United Kingdom by virtue of section 1(2) of that Act.[6] Article 3 of the Convention provides inter alia:
"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 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 subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of any agreement having legal effect under the law of that State".
Article 12 provides inter alia:
"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 ...".
Article 13 provides inter alia:
"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 ... which opposes its return establishes that -
....
(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.
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".
Article 18 provides:
"The provisions of this chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time".
Undisputed matters
[7] It is not disputed that at the date of the first respondent's departure from Western Australia on or about 19 October 2003 the children H, A, D and F were habitually resident there and that issues relating to their custody were subject to the jurisdiction of the Family Court. Nor is it disputed that by the law of Australia the petitioner had, as at that date, rights of custody in respect of these children and was exercising these rights or would have exercised them but for the removal of the children by the first respondent. It is accepted by the first respondent that the removal of the children from Western Australia is wrongful in terms of Article 12 of the Convention. Less than a year has elapsed between the removal of the children and the presentation of this petition. Accordingly the petitioner has a prima facie case for an order under Article 12 requiring the return of the children to Western Australia.
The first respondent's position
[8] This respondent maintains that if the children were ordered to be returned to Western Australia there would be a grave risk that the children would be placed in an intolerable situation. Such a risk arises for three reasons namely (a) the children would not have access to a continuing proper education in a school of a reasonable standard, (b) there is an absence of reasonable necessary medical care and assistance and (c) the petitioner is unable to provide proper maintenance for the children. Separately this respondent relies upon the objection of the second respondent, H, to being returned to Australia. Moreover, this respondent suggests that to return the three youngest children without H would cause the children returned to be placed in an intolerable situation. Accordingly this respondent submits that the order should be refused under Article 13 of the Convention.
The second respondent's position
[9] This respondent also maintains that there is a grave risk that her return would place her in an intolerable situation essentially for the same reasons as those expressed by the first respondent. Further, this respondent objects to being returned to Western Australia and maintains that she has attained an age and degree of maturity at which it is appropriate to take account of her views. Reliance is placed upon Article 13 of the Convention.
Preliminary issue
[10] Before considering the evidence and submissions I should deal with an issue which arose on the morning of the third day of the hearing before me. By that time I had heard the evidence of Dr Helen Moffat, a Chartered Clinical Psychologist, who was the only witness to give oral testimony. Counsel for the first respondent had concluded his submissions and counsel for the second respondent had almost completed his submissions. On the morning of the third day of the hearing counsel for the second respondent advised me that Dr Moffat was again present in the Court building and was prepared to interview the children A and D with a view to ascertaining the effect upon them if I should decide that H should remain in Scotland but that the other three children should return to Western Australia. Thereafter it was proposed that Dr Moffat would be recalled to give evidence about this matter. Counsel for the first respondent associated himself with this motion. Counsel for the petitioner opposed the motion on the ground that it was inappropriate to seek to lead further evidence at that stage of the proceedings. He submitted that the effect upon the other children of any decision that H should remain in Scotland was an issue for the petitioner and the first respondent rather than the second respondent. Moreover, he submitted that the petitioner would suffer prejudice if the motion were granted. The petitioner was in Australia and had no prior notice that this issue was to be raised. If the additional evidence was led it may be that the petitioner would require to instruct a report from a psychologist to contradict Dr Moffat's evidence.[11] I refused the motion to allow Dr Moffat to be recalled. In the first place it appeared that she had not yet interviewed the children and it was not known that she would have any relevant evidence to provide to the Court. Secondly, it appeared to me that this application came far too late. Counsel for the first respondent had concluded his submissions and counsel for the second respondent had almost concluded his submissions. The proposal to have Dr Moffat interview two of the children seemed to be a reaction to my questions posed to counsel for each of the respondents concerning the possible splitting of the family, in the event of my reaching a conclusion that I should give effect to H's objection. The proposed course of action would not have addressed my concerns because it did not include any assessment of the effect upon the youngest child, F. Moreover I considered that the petitioner may well suffer prejudice if I were to allow Dr Moffat to be recalled. In such a situation it may be necessary to adjourn the hearing to enable the petitioner to obtain expert evidence. In any event there was evidence before me, albeit of a limited nature, about the undesirability of splitting the family. It also appeared to me that the proposed evidence was of doubtful relevance to my determination of the issue of whether I should give effect to H's objection. Such evidence would be more directly relevant to the issue of whether the other children should be returned to Western Australia if I sustained H's objection. This appeared to me to be an issue principally for the first respondent and the petitioner.
Authorities
[12] In the course of submissions I was referred to the following authorities: W v W 2003 S.L.T.1253; Q Petitioner 2001 S.L.T.243; Urness v Minto 1994 S.L.T.998; Singh v Singh 1998 S.L.T.1084; Starr v Starr 1999 S.L.T.335; W Petitioner (Lord Hardie 13 August 2003); BRD v FLM (Lord Emslie 24 October 2003); Re C (Abduction: Grave Risk of Psychological Harm) 1999 1 F.L.R.1145; Re L (Abduction: Child's Objections to Return) 2002 2 F.L.R.1042; Re S (A Minor) (Abduction: Custody Rights)1993 Fam.L.R.242; Re T (Abduction: Child's Objections to Return) 2000 2 F.L.R.192; Re L (Child Abduction)(Psychological Harm)1993 2 F.L.R.401; B v B (Abduction: Custody Rights) 1992 3 W.L.R.865; Re HB (Abduction: Children's Objections) 1997 1 F.L.R.392; Re M (A Minor) (Child Abduction) 1994 1 F.L.R 390 and Friedrich v Friedrich 78 Federal Reporter 1060.
Decision
Intolerable situation
[13] The first issue for my consideration is whether it has been established that there is a grave risk that to order the return of the children or any of them would place such children in an intolerable situation. Even if the evidence satisfies me that such a grave risk has been established I require to consider whether I should exercise my discretion in favour of refusing to order the return of the children, or any of them.[14] In his careful and concise submissions, Mr Beynon, counsel for the first respondent accepted that where it was established that the removal of children from one jurisdiction was wrongful in terms of Article 12 of the Convention and less than a year had elapsed between the removal of the children and the presentation of the petition seeking their return, the burden of establishing the objection to their return in terms of Article 13 of the Convention rested upon the person or persons making such an objection.
[15] Counsel for the first respondent submitted that it was necessary to scrutinise the evidence with extreme care, particularly in a case such as this in which there had been previous proceedings in this court, as a result of which the Inner House had ordered the return of the children to Australia. In these circumstances the appropriate approach to be taken by the court should be to consider the evidence concerning the reality of what occurred after the return of the children in August 2003, in contrast to the undertakings given by the petitioner prior to the court pronouncing the order for the return of the children. It was submitted that, if the evidence were analysed in this way, there was clear and compelling evidence that if the children were returned to Australia there would be no provision of necessary schooling for the three older children or of nursery education for the youngest child. There would also be an absence of non-essential medical care for the children. Finally there would be a real and serious risk that there would be periods when the children were not properly maintained by the petitioner. Such evidence amounted to a grave risk that the children would be placed in an intolerable situation if an order for their return was made.
[16] Counsel for the second respondent adopted a similar approach in relation to the return of H. He referred to the undertakings given to the Inner House concerning the payment of maintenance for the children. He also submitted that while it would be normal for the court to rely upon the courts of habitual residence to resolve such issues of maintenance, it was not appropriate to do so in the present case. In the present case the Family Court had been seized of this matter and dealt with the question of maintenance by reducing the maintenance payable by the petitioner for the children as a result of which certain consequences followed, namely, there was a shortage of money requiring the first respondent to rely upon others for the provision of food and other necessaries. The lack of funding had prevented H from having access to private education and she had had no access to state education. It had clearly been in the contemplation of the Inner House that H would receive education upon her return to Australia. It was intolerable for any child to be deprived of education but in H's case, having regard to her particular difficulties, it could not be disputed that the lack of education created an intolerable situation for her. Between 21 August and 20 October 2003 the issue of H's education had not been resolved by the Family Court. This case was thus an exception to the normal situation where the court could assume that the courts of habitual residence would resolve such matters, having regard to welfare and other principles. In the present case the Australian courts had proved to be incapable of protecting H's interests, principally because of the petitioner's financial circumstances. It was submitted on behalf of the second respondent that this failure by the Australian courts was against the spirit of the Convention. Accordingly this should be treated as an extreme case, in which it had been established that there was a grave risk of placing H in an intolerable situation if an order for her return to Australia was made. It was further submitted on behalf of H that to order the return of the other three children, without H accompanying them, would be an intolerable situation for H. In the special circumstances of this case counsel submitted that the appropriate course for the court to adopt was to refuse to order the return of any of the children.
[17] On behalf of the petitioner it was submitted that the authorities clearly demonstrated that the court should only refuse to order the return of children to the jurisdiction of the courts of habitual residence in exceptional circumstances. The proper approach was to consider what had changed since the decision of this court in June 2003. The issues of accommodation and finance had been before the court and the court had concluded that there was no grave risk that the children would be placed in an intolerable situation if they were returned to Australia. Accordingly, in the present proceedings, the court had to consider whether there had been a sufficient change of circumstances to indicate that the return of the children now would result in a grave risk of their being placed in an intolerable situation.
[18] Before considering the evidence in relation to the respondent's objections based upon Article 13(b) of the Convention, I should observe that no issue was taken on behalf of the petitioner about the appropriateness of the second respondent making submissions concerning the Article 13(b) case, as opposed to her objection to being returned to Australia. Although this issue was alluded to in submissions on behalf of the petitioner, it was not developed and counsel for the second respondent, who indicated that he would wish to address the Court on this matter should it be developed, did not require to make submissions on this point. In Re M (A Minor) (Child Abduction) Butler-Sloss L.J. indicated at page 394 that the rules of the English courts did not preclude the court from making a child a party to the proceedings but it is clear from her observations that such a situation would be a rare occurrence. In that regard at page 397 Sir Thomas Bingham, M.R., as he then was, stated:-
"The Convention is intended to provide a simple and summary procedure for returning to their country of habitual residence children who have been wrongfully removed from it. The courts would not be true to the letter or the spirit of the Convention if they allowed applications to become bogged down in protracted hearings and investigations. While I accept that there is jurisdiction to permit the children to be joined as parties it would very rarely be right to exercise it, and compelling grounds would be needed. It is for the judge in the country of habitual residence to decide what is best for the child in the medium and longer term".
While I accept that English procedure differs significantly from the procedure in our courts, not least because of the existence in England of the court welfare officer who is able to interview children and to provide the court with their views, nevertheless I consider that the comments of Sir Thomas Bingham are apt. In cases in which children are sisted as parties in Scotland to enable them to object to being returned to the jurisdiction of the courts of habitual residence it might be appropriate to restrict the involvement of such children in the process to that issue. Having said that I recognise that there may be cases where issues of exposing a child to physical or psychological harm or otherwise placing a child in an intolerable situation might have a bearing on the validity of a child's objection to being returned. The present case may be such an exceptional case and, in the absence of any detailed submissions on this matter, I have treated it as such. I would, however, wish to reserve my opinion as to whether it is appropriate generally for children, who are sisted as parties, to make representations on issues other than their objection to being returned. Normally I would expect such issues to be addressed on behalf of the children by the parent, who is resisting the order for return of the children to the jurisdiction of the courts of habitual residence.
[19] Having considered the respective submissions of counsel I am of the opinion that the starting point is the decision of the Inner House in W v W. At page 1256H-I the opinion of the court records that:
"The Lord Ordinary did not find that there was any intolerable feature of the children's lives in Australia immediately prior to their wrongful abduction".
From the passage at page 1257I-J it is clear that the court concluded that the Lord Ordinary had erred in failing to reach a view on the Article 13(b) defence before considering the separate issue of H's objection. It is also clear from that passage that the issue of lack of accommodation and means of support in Australia was the basis of the Article 13(b) objection in respect of all of the children. The issue of education was raised in the context of H's objection, having regard to her special needs. (page 1261J-K). It does not appear from the report that the issue of education for the children, or rather the lack of education, was advanced by the petitioner in support of her assertion that there was a grave risk that the return of the children would place them in an intolerable situation. The court received an undertaking on behalf of the petitioner in respect of accommodation and maintenance which addressed the petitioner's concerns. Accordingly the court reached the conclusion that the return of the children would not place them in an intolerable situation. Against that background I shall consider the evidence of what transpired following the return of the children to Australia. Thereafter I shall determine whether the respondents have established that there is a grave risk that the return of the children will place them in an intolerable situation for any or all of the reasons alleged by the respondents. In undertaking this exercise I acknowledge that the respondents require to produce clear and compelling evidence of the grave risk of intolerability which must be shown to be substantial. In B v B (Abduction: Custody Rights) Sir Stephen Brown, P quoted with approval a statement by Balcombe L.J. in Re A 1992 Fam.106 that "a very high degree of intolerability must be established in order to bring into operation Article 13(b)". In Re C (Abduction: Grave Risk of Psychological Harm) Ward L.J. reviewed various authorities and concluded at page 1154:-
"There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence".
As in BRB v FLM there was little dispute between the parties regarding the general principles to be applied in this case. As was observed by Lord Emslie in that case, "the fundamental objective of the Convention and the primary duty of the Court in that regard under Article 12, the very high threshold to be met by a respondent under Article 13(b) ...are ...all clearly vouched by the authorities". Bearing in mind the high standard which has to be achieved by the respondents I shall consider each of the issues in turn.
Medical care
[20] As I have already observed this was not an issue raised by the first respondent on the first occasion on which the petitioner sought return of the children to Australia. Evidence about this matter is contained in the affidavit by Robert John Andrews (7/37 of process), the affidavit by Malcolm Bruce, M.P. (7/38 of process), the affidavit by Mrs Brenda Rattray (7/39 of process), the affidavit by the first respondent (7/41 of process), the affidavit by Clare Elizabeth Molnar (7/42 of process) and the Medicare Health Card (7/40 of process). The evidence of Clare Molnar is of a general nature and at paragraph 6 she states that the visa which permitted the return of the first respondent to Australia with the children does not entitle her to access to the Australian healthcare system apart from emergency healthcare in accordance with the reciprocal arrangement between Australia and the United Kingdom. At page 5 of the affidavit of Mrs Rattray, paragraph 7 of the affidavit of Mr Andrews and paragraphs 3 and 11 of the first respondent's affidavit reference is made to an incident in which the child F became ill and required medical attention. Paragraph 11 of the first respondent's affidavit also refers to the Medicare Health card (7/40 of process).[21] I did not consider the affidavit of Malcolm Bruce, M.P. to be of any assistance in this regard because it amounted to no more than a repetition of the first respondent's complaints including the fact that the children had no right to healthcare. His evidence in that regard did not add anything to the more direct evidence on this matter. From an analysis of the evidence it appeared to me that the first respondent and the children would be entitled to emergency healthcare in accordance with the reciprocal arrangement between Australia and the United Kingdom in the event of the first respondent returning with the children to Australia. Moreover, it appeared that the only occasion on which any of the children required medical attention was on 1 September 2003. On that date Mr Andrews, the Vice-Consul at the British Consulate General in Perth, arranged for medical treatment for the child and thereafter ensured the issue of a Medicare membership card to facilitate any further necessary medical attention. This card provides cover for immediately necessary healthcare but not for "non-immediate, pre-arranged or elective treatment". The thrust of the first respondent's objection in relation to the lack of medical care seemed to be that, if any of the children had a minor ailment, she would require to pay for a consultation with a doctor. There was no evidence submitted to me that such a situation had arisen in the period between August and October 2003 when the respondent was residing in Australia with the children. The difficulty with the child F on 1 September 2003 appears to have been sufficiently serious to merit a referral to hospital. It is clear from the evidence that if the children are returned to Australia they will be entitled to reciprocal healthcare in terms of the Medicare membership card, which remains in force until 28 July 2004. I would also observe that the card provides equivalent cover for the first respondent.
[22] The first respondent's complaint about medical care is summarised in her evidence at paragraph 11 of her affidavit in the following terms:-
"The card just covered urgent medical assistance and is not the medical provision which the children and I had when living with P. If I had to go to a doctor in Australia myself or with any of the children I would receive a bill for the consultation and prognosis. Medicare only covers emergencies".
In my opinion such evidence falls far short of the standard required to satisfy the court that there is a grave risk that the return of the children will place them in an intolerable situation. Moreover the requirement to pay for medical care, which is not immediately necessary, is a matter which was mentioned by the first respondent at paragraph 36 of her affidavit dated 16 September 2003 (7/31 of process) presented to the Family Court in connection with her application to increase the maintenance payments to her by the petitioner and her opposition to the application by the petitioner to reduce the maintenance payments payable by him to her. The relevant factors to be considered in determining the appropriate level of maintenance are issues for the Family Court which made an order dated 1 October 2003 (7/23 of process) fixing the level of maintenance at A$650 per week commencing on 3 October 2003. The Family Court is best able to assess the appropriate level of maintenance, having regard not only to the respective financial circumstances of the parties but also to the conditions which prevail in Western Australia, including the requirement to pay for medical attention which is not immediately necessary. There is no evidence that the children required non-essential medical attention when they lived in Australia between August and October 2003. Nor is there any evidence which would entitle me to infer that they were likely to require such non-essential medical care shortly after their return, bearing in mind that my concern is limited to giving the children the maximum possible protection until the Family Court can resume its role in relation to them. In my opinion any risk to the children is not serious and does not even approach the high standard imposed upon respondents seeking to invoke Article 13(b) of the Convention. In all the circumstances I am not satisfied that the complaint relating to medical care amounts to a grave risk that the return of the children would place them in an intolerable situation
Maintenance
[23] The second ground upon which the first respondent bases her defence under Article 13(b) of the Convention relates to her allegation that the petitioner failed to provide adequate maintenance for the children following their return to Australia in August 2003. For the avoidance of doubt, within the concept of maintenance I include the alleged breach of the undertaking given by the petitioner to the Inner House recorded in W v W at page 1262F-I, delays and/or failures to pay the aliment awarded by the Family Court, problems associated with the rental of suitable accommodation and shortages of food. Evidence relating to such matters is contained in the affidavit by Robert John Andrews (7/37 of process), the affidavit by Malcolm Bruce, M.P., (7/38 of process), the affidavit by Mrs Brenda Rattray (7/39 of process), the affidavit by the second respondent, H, (no.19 of process), the affidavits by the first respondent (7/31, 7/32 and 7/41 of process), the affidavits by the petitioner (6/1 and 6/10 of process) and the various documents produced by the petitioner (6/7, 6/8 and 6/11 of process). Before considering such evidence I wish to emphasise that issues relating to the level of maintenance are properly issues for the Family Court. The Family Court is seized of these matters and has considered them. That court is best suited to determine this issue and will be able to take into account the relative financial circumstances of the parties as well as the cost of living in Western Australia. I do not consider that the defence in Article 13(b) of the Convention was intended to encompass issues of maintenance. In that regard I agree with the observations of the United States Court of Appeals in Friedrich v Friedrich, at page 1068 where under reference to Article 13(b) of the Convention it was stated:-
"This provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court's determination. The person opposing the child's return must show that the risk to the child is grave, not merely
serious.
A review of deliberations on the Convention reveals that 'intolerable situation' was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State".
"For Convention purposes, therefore, the return and its consequences may be relatively short lived because, as Lord Donaldson, M.R. pointed out in discussing the matter of psychological harm in Re C supra (1989) at page 413:-
'It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of this case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the country ...can assume their normal role in relation to the child'".
It is clear that the Family Court has assumed responsibility for determining issues of maintenance for the children in the present case and made an order to that effect on 1 October 2003. That order was implemented by the petitioner timeously and on a regular basis until the first respondent removed the children from the jurisdiction of the Family Court, at a time when there was a prospect that the issues relating to the children would be finally determined by that court within a matter of two months. The first respondent's concerns relating to financial matters ought properly to be raised with the Family Court, whose order permitted further applications in relation to interim maintenance on fourteen days notice (paragraph 11 of 7/23 of process). My limited jurisdiction of providing the children with the maximum possible protection until the Family Court can resume its normal role in relation to them will be satisfied, if appropriate undertakings are given relating to the provision of furniture and/or money to enable the first respondent to obtain accommodation upon her return to Western Australia. Similar undertakings to those given to the Inner House, amended to reflect the more recent order of the Family Court and to take account of what capital sum is necessary to enable the first respondent to obtain accommodation, might be appropriate.
[25] Even if the issue of maintenance is relevant to the defence under Article 13(b) of the Convention, I am not satisfied that the first respondent has established that her concerns in this regard amount to a grave risk that the return of the children to Australia would place them in an intolerable situation.
Education
[26] The final issue raised by the first respondent relates to education. The nature of this complaint is that when the children were in Australia between August and October 2003 they were unable to attend school. The financial circumstances of the parties were such that the children could not attend a fee paying school. In addition the first respondent alleges that the nature of her visa and that of the children was such that the children could not attend State schools. Evidence of this is contained in the affidavit of the second respondent, H, (no.19 of process) and in the affidavits of the first respondent (7/31, 7/32 and 7/41 of process). The petitioner maintains that the children could receive free State education if they were transferred to his visa, although the affidavit by Clare Elizabeth Molnar (7/42 of process) attempts to explain the requirements for such a transfer. I note that at paragraph 7 of her affidavit she states that it is open to the immigration official to waive some of the various requirements. Whether the children can be transferred to the petitioner's visa is a matter for the Australian authorities. The concerns about the lack of education were raised before the Family Court in the context of the dispute about maintenance. Reference is made to paragraphs 38-40 inclusive of the first respondent's affidavit (7/31 of process). Having explained her concerns about lack of education the first respondent concludes at paragraph 40 that "to date I have not heard back from any of the above people and/or the Education Department as to whether the children could be enrolled at the local school. The children's education is suffering". The visa issued to the first respondent and the children appears to permit the visa holder to engage in studies, including attendance in schools, for a period not exceeding three months. Reference is made to 7/32 of process, Annex D. I am uncertain as to whether the children were prohibited from attending school in Australia but I accept as a matter of fact that they did not do so. It may be that their inability to attend school was, at least in part, attributable to the actions of the first respondent but it is unnecessary for me to resolve this issue.[27] The question of education was raised in the previous application before this court in the context of H's objection. While I consider that the absence of education is a matter of concern, particularly in the context of H who has specific problems with spelling and receives extra support to address this difficulty, there was no evidence before me to indicate that the education of the children, A and D, suffered as a result of their failure to attend school. It appears from paragraph 4 of the affidavit of the second respondent (19 of process) that the first respondent arranged for the head teacher at A Primary School to send work and materials to Australia to enable the children to continue with their education at home. A and D did the school work at home. I would observe that, if the children had not been removed from Australia by the first respondent, the welfare of the children would probably have been determined by the Family Court following a hearing on or about 17 December 2003. One of the issues which the Family Court would undoubtedly consider in determining the question of the welfare of the children would be their future education. I was advised that in Australia the school summer holidays commence in December. Had the first respondent not removed the children from Australia, the children would have been able to resume their education in Australia at the end of the summer vacation or would have been able to return to Scotland, depending upon the decision of the Family Court. In that situation the disruption to their education would have been limited to the period between September and December, when they had access to books and other materials sent to them from Scotland. By removing the children when she did the first respondent has exposed them to further disruption in their lives, including their schooling. In such circumstances I do not consider that it is appropriate that the first respondent should be permitted to rely upon her own actions in support of her attempts to resist the return of the children to Australia. In any event as far as the children, A and D are concerned, there is no evidence upon which I could conclude that the Family Court is unable to protect their interests, in so far as their future education is concerned. Accordingly as regards these children I am not satisfied that the first respondent has established that any difficulties about their education will not be addressed by the Family Court or that such difficulties will result in a grave risk that their return would place them in an intolerable situation.
[28] In so far as the youngest child, F, is concerned, the respondent's position is even weaker than in the case of A and D. F has not yet attained school age. He will commence school in August 2004 if he remains in Scotland. It appears to me that, if he is returned immediately to Australia, the issue of his future welfare could be determined by August or shortly thereafter. He will not attain the age of 5 until December 2004 and any delay in his commencing school would be insignificant. It cannot be said that on educational grounds there is a grave risk that his return to Australia would place him in an intolerable situation. Although the submission on behalf of the first respondent referred to the lack of nursery education in the event of F's return, this was not developed in argument because there was no evidence about this matter before me. In any event even if the return of F to Australia had the effect of his missing nursery education between now and the determination of this case by the Family Court, I do not consider that factor would satisfy the high standard which the first respondent must achieve before the court will refuse to return a child on the basis of Article 13(b) of the Convention.
[29] As far as H is concerned there is evidence contained in her affidavit at paragraph 7 that she had fallen behind with her school work when she returned to Scotland from Australia. As with the other children, there is evidence that she did not attend school but did school work at home which had been sent to Australia from Scotland. There is also evidence contained in the letter from the head teacher at A Primary School (18/2 of process) that in May 2003 the occupational therapist reviewed H and judged her to be competent in all areas assessed and discharged H. It appears that H does not seem to experience any difficulties linked to dyspraxia and is able to cope with all school activities. H still requires extra support with spelling and she also finds maths difficult and becomes confused with the basic process. While I accept that H enjoys school and became anxious at the prospect of falling behind with her school work when she was in Australia, I do not consider that the evidence relating to this matter attains the high standard required of the first respondent to establish an objection to H's return to Australia based upon Article 13(b) of the Convention.
[30] In conclusion I am not satisfied that it has been established that there is a grave risk that the return of any of the children will place them in an intolerable situation.
[31] Before considering the final issue of H's objection to her return to Australia, I would simply add that if I were to sustain H's objection that would not alter my position in relation to the return of the three youngest children. Thus the effect of sustaining H's objection would be to enable her to remain in Scotland, while the other three children return to Australia. I acknowledge that there have been cases where the Courts have concluded that younger children would be placed in an intolerable situation if an older child were not returned with them. However such cases are exceptional. In Urness v Minto there were only two children aged 12 and 9. The Court gave effect to the objection of the older boy but thereafter considered that it would be intolerable for the younger boy to return alone to a father with whom he had resided for only a few months as an infant. There was also the possibility that his mother would remain in Scotland with her husband, the child of that marriage and the older boy. Thus the court was considering the separation of the younger boy not only from his older brother but from his mother, in whose care he had spent his most formative years. In Singh v Singh there was evidence indicating social, educational and psychological benefits for the younger child to remain in Scotland and the court was satisfied that separation from his older brother was against his interests. (1096A-B). In Re T (Abduction: Child's Objection to Return) it is clear that the older child's objection to being returned was based upon fears for herself and for her younger sibling because of what had happened to them (217F). At page 219 Ward L.J. recognised that there were quite exceptional circumstances in that case. In contrast there are no such exceptional circumstances in the present case. If the family were split, it would involve three children remaining together and returning with their mother to Australia. There is no evidence that such a split would result in a grave risk that the return of these three children would place them in an intolerable situation. I was invited by counsel for the second respondent to consider the effects upon H, if I were to return the three youngest children to Australia and permit her to remain in Scotland. It is clear that H has a close relationship with her younger brothers and sister but I do not consider that it would be appropriate to refuse to return the younger children to Australia simply because H objected to returning there. Unlike the cases to which I have referred, H's objection does not involve the other children and the sustaining of her objection would not result in the isolation of any of the children other than H, who would remain with relatives in Scotland. In such a situation it would be open to H to reconsider her position and to join the rest of her family in Australia, if she wished to do so.
H's objection
[32] The remaining issue for my consideration is H's objection to being returned to Australia. It was not disputed that the proper approach was set out by the court in W v W at 1258A-C where the court followed the approach adopted by the English courts in Re T (Abduction: Child's Objection to Return). In W v W the court stated at 1258:
"We consider ...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".
Even if I were satisfied that H objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views, I require to consider whether I should exercise my discretion in her favour. In considering H's objection in the context of these propositions I had the benefit of evidence from H in the form of an affidavit (19 of process) and oral testimony from Dr Helen Moffat, who expanded upon her report (18/1 of process). In addition there were other documents including the letter from the head teacher at A Primary School.
[33] The first issue for me to determine is whether H objects to being returned to Australia and if so why. I have concluded on the evidence that H does object to returning to Australia. The reasons for her objections are two in number and are recorded at paragraph 2.1.20 of Dr Moffat's report. The first reason is that H fears that the petitioner "wants to capture us and steal us away". Her second reason is that she wishes to stay in Scotland with the first respondent because "it's better to stay here and I've got my family and friends here".[34] The second issue for my consideration is the age and degree of maturity of H. I accept the evidence of Dr Moffat to the effect that H's language and reasoning ability showed a level of maturity above average for her age but her social development is less advanced. I also accept Dr Moffat's opinion that H's lack of maturity in social and emotional functioning does not preclude H from having attained the degree of maturity necessary to understand the family situation and to make and express a decision that is independent from the influence of others. However, I have reservations about H's level of understanding of the range of choice available, upon which she should base her decision whether to return to Australia or not. From Dr Moffat's report and from her oral testimony it appeared to me that there was confusion in H's mind concerning the purpose of her return to Australia. At paragraph 2.1.21 of Dr Moffat's report it appears that H's fear is that the decision of this court would be "forever" although the first respondent and her solicitor had explained to H that it might only be until the Australian courts decide what is to happen. In her evidence Dr Moffat elaborated upon this and explained that H's fear that a decision to return her to Australia forever clouds her thinking but if one can get past that it appears that H understands that it will be for such time as the courts there require to decide the issue between the petitioner and the first respondent. In conclusion Dr Moffat expressed the opinion that H understands that there are different options but Dr Moffat did not think that H saw these options as choices for her. There was also ambiguity and confusion when H was asked to consider various possibilities ranging from her staying in Scotland with her mother, brothers and sister to H living alone with the petitioner in Australia. Dr Moffat accepted that the ratings given by H for the various possibilities were of no value other than to show that H had an understanding that there were a range of different options. It also appeared to me that H's decision was influenced by an irrational fear that the petitioner wished to steal her and the other children. H is obviously anxious about returning to Australia and it appears from Dr Moffat's conclusion that "a higher level of anxiety would cause her to think in a way that is less rational and less mature than she might otherwise". (Paragraph 4.1.2). In the circumstances I consider that H lacks a proper understanding of the purpose of her return to Australia. Moreover I have concluded that her fear that the petitioner will "steal" her and the other children has caused her to react in a way which is less rational and less mature than otherwise might be expected of her. I do not accept the submission by her counsel that H's fears are rooted in reality in the sense that the petitioner has applied to the Family Court for a residence order. Moreover if H perceives an application to the court for a residence order as an attempt to "steal" her and the other children that may be an indication of lack of maturity. In conclusion I am not satisfied that H has attained an age and degree of maturity at which it is appropriate to take account of her views.
[35] The third issue for my consideration is to assess the strength and validity of H's views. On the basis of the evidence I have no doubt that H's views are strongly held. However, for reasons already mentioned I have serious doubts about the validity of these views. It appears that H does not wish to return to Australia partly because she equates this with living with the petitioner on a permanent basis. The fact that she is settled in Scotland and enjoys her present environment is not, in my opinion, a valid reason for refusing to return to the jurisdiction of the Family Court to enable that court to determine the issue between the petitioner and the first respondent concerning the children. Thus even if I had reached the conclusion that H was of sufficient age and maturity I would not have taken account of her views because I do not consider her objection to be valid.
[36] For the sake of completeness I should add that, in the event that I had reached a different conclusion, I would not have exercised my discretion in her favour. I consider that the reasons for H's objection do not provide sufficient cause to refuse to give effect to the spirit and purpose of the Convention. Moreover I consider that it is desirable that all four children should remain together and that if the three youngest children are returning to Australia it is desirable that H should join them. I am reinforced in that view by the evidence of Dr Moffat who confirmed in cross examination that if the three youngest children had to return to Australia, it was preferable on balance for H to go with them because the disruption in the relationships occasioned by a separation would be greater than the disruption to H's education. Later in cross examination Dr Moffat confirmed that H could not cope without the twins and Dr Moffat considered that a separation from her siblings would cause H a considerable amount of distress.
Order
[37] Subject to the petitioner providing a satisfactory undertaking relating to the first respondent being advised at least 48 hours prior to her departure for Australia that funds were in the hands of the petitioner's solicitors and available to be uplifted by her on arrival in Australia to enable her to obtain accommodation, I shall pronounce an order for the return of the children to Australia. In order to avoid difficulties experienced by the first respondent in the past the petitioner should give consideration to offering a sum equivalent to five weeks maintenance of which one week would relate to the period commencing with the arrival of the first respondent in Australia and the other four weeks would be a lump sum payment to enable her to obtain accommodation.
