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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 115
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P949/06
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OPINION OF LORD UIST
in the Petition of
H
Petitioner;
against
C
Respondent:
ннннннннннннннннн________________
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Petitioner: Speir; Drummond Miller WS
Respondent: Innes; Balfour & Manson
18 July 2006
Introduction
[1] The
petitioner and respondent entered into a relationship in 1999 and are the
father and mother of two children, M, a boy born on 2 November 2001, and S, a girl born on 20 May 2004. As these proceedings relate to the children I
shall refer to the petitioner as "the father" and the respondent as "the
mother". The father is Dutch and the
mother is Scottish. They lived together
in the Netherlands,
where the children were born, until 18 June
2005, when the mother came to Scotland
with the children. Until that date the
children were habitually resident in the Netherlands.
The father has custody rights in the
children under the law of the Netherlands
by virtue of custody agreements under article 252 of the Dutch Civil Code
registered on 18 November 2001
and 17 June 2005
respectively. Since 18 June 2005 the children have lived with
the mother in Inverness, where her parents live.
The proceedings
[2] The
petition brought by the father is for an order for the return of the children
to the Netherlands under the Child Abduction and Custody Act 1985 ("the 1985
Act"), which gives effect to the 1980 Hague Convention on the Civil Aspects of
International Child Abduction ("the Convention"). The father made an application under the
Convention to the Central Authority of the Netherlands
for the return of the children on 5 April
2006 (no 6/9 of process). The
petition was served on the mother on 24
May 2006. I heard
submissions from counsel at a second hearing on 28 and 29 June 2006. Although an interlocutor of 21 June 2006
directed "that oral evidence from the petitioner and respondent may be led, if
desired, on the question of the petitioner's acquiescence or consent in the
removal of the children from Holland", no oral evidence was led and I was
invited to determine the petition on the basis of the affidavits, the
productions and any additional information provided to me by counsel.
The applicable law
(i)
The terms of the 1985 Act and the Convention
Section 1 of the 1985 Act
provides:
"1(1) In this Part of this Act 'the Convention'
means the Convention on the Civil Aspects of International Child Abduction
which was signed at the Hague on 25 October 1980.
(2) Subject to the provisions of this Part of this
Act, the provisions of that Convention set out in Schedule 1 to this Act
shall have the force of law in the United
Kingdom."
The applicable articles of the
Convention, so far as relevant, are as follows:
"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. 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 .....
12. Where a child has been wrongfully removed or
retained in terms of article 3 and, at the date of 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.
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 .... (who)
opposes its return establishes that -
(a) the person
having the care of the person of the child was not actually exercising the
custody rights at the time of the 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."
(ii)
Removal and retention
[3] In
In re H (Minors)(Abduction: Custody
Rights) [1991] AC 476 the House of Lords made clear that removal and
retention were mutually exclusive concepts under the Convention. At p 500B-C Lord Brandon of Oakbrook,
with whom the remainder of their Lordships agreed, stated as follows:
"For the
purposes of the Convention, removal occurs when a child, which has previously
been in the state of its habitual residence, is taken away across the frontier
of that state; whereas retention occurs where a child, which has previously
been for a limited period of time outside the state of its habitual residence,
is not returned to that state on the expiry of such limited period. That being so, it seems to me that removal and
retention are basically different concepts, so that it is impossible for either
of them to overlap each other or for either to follow upon the other."
[4] Lord
Brandon went on to state (at p501B) that these views were in accordance with
the decision of Lord Prosser in Kilgour v Kilgour 1987 SLT 501.
[5] In
In re S (A Minor) (Custody; Habitual
Residence) [1998] AC 750, Lord Slynn of Hadley, with whom the remainder of
their Lordships agreed, said at p 767F-G, speaking of removal and retention:
"Even though the
two are separate and mutually exclusive both can occur on the facts in relation
to the same child at different times. It
must, however, be necessary to point specifically to the event which
constitutes the removal or retention. This
is necessarily so because of the provision of article 12 that for an order for
the return of the child to be made at the date of commencement of the
proceedings a period of less than one year must have elapsed 'from the date' of
the wrongful removal or retention."
(iii)
Acquiescence
[6] The
question of acquiescence was considered by the House of Lords in In re H and Others (Minors) (Abduction:
Acquiescence) [1998] AC 72. At
p 87G Lord Browne-Wilkinson said:
"What then does
article 13 mean by 'acquiescence'? In my
view, article 13 is looking to the subjective state of mind of the wronged
parent."
At p 88C-D he said:
"In my judgment,
therefore, in the ordinary case the court has to determine whether in all the
circumstances of the case the wronged parent has, in fact, gone along with the
wrongful abduction. Acquiescence is a
question of the actual subjective intention of the wronged parent, not of the
outside world's perception of his intentions."
At p 88G-H he said:
"Although each
case will depend on its own circumstances, I would suggest judges should be
slow to infer an intention to acquiesce from attempts by the wronged parent to
effect a reconciliation or to reach an agreed voluntary return of the abducted
child......... Attempts to produce a
resolution of problems by negotiation or through religious or other advisers do
not, to my mind, normally connote an intention to accept the status quo if
those attempts fail."
At p 89A-B he said:
"Finally, it
should always be borne in mind that under article 13 the burden of proving
that the wronged parent has consented to or acquiesced in the abduction is on
the abducting parent who is resisting the summary return of the child. This placing of the burden of proof on the
abducting parent is designed to ensure that the underlying purpose of the
Convention is carried out, viz., the child is to be summarily returned to its
country of habitual residence unless the abductor can prove that the other
parent has in effect consented to the removal of the child."
[7] At
pps 89C-90D his Lordship went on to state that the one exception to the rule
that acquiescence is a question of the actual subjective intention of the
wronged parent arose where the words or actions of the wronged parent clearly
and unequivocally show and have led the other parent to believe that the
wronged parent is not asserting or going to assert his right to the summary
return of the child and are inconsistent with such return.
[8] The
above test for the establishment of acquiescence was applied in Scotland
by Lord Macfadyen in M v M 2003 SCLR 71 and has been
applied in England
by Sir Stephen Brown P in Re B
(Abduction: Acquiescence) [1998] 1 FLR 686 and by Kirkwood J in Re B (Abduction: Acquiescence) [1999] 2
FLR 818.
(iv)
Affidavit Evidence
[9] Rule
of Court 70.5(2)(c) provides that there shall be lodged with the petition
the evidence by affidavits of any witnesses and any documentary evidence,
whether originals or copies initially, in support of the petition. Rule of Court 70.6(4) provides that a
respondent shall lodge in process, and send a copy to the petitioner of, the
evidence by affidavits of any witnesses and any documentary evidence, whether
originals or copies initially, in support of his answers to the petition at
least 3 days before the first hearing.
Rule of Court 70.6(5)(b) provides that at the first hearing the
court may, on special cause shown, direct that a particular matter should be
the subject of oral evidence in lieu of further, or in addition to, affidavit
evidence.
[10] The Court of Appeal considered the difficulties to which
disputed affidavit evidence could give rise in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548. At pps 552H - 553B Butler-Sloss
LJ stated:
"Proceedings
under the Convention are summary in nature and designed to provide a speedy
resolution of disputes over children and secure the prompt return of children
wrongfully removed from the country of their habitual residence...... In a number of cases oral evidence has been
admitted and, in others, refused by the judge in Convention cases which have
been reported and which were brought to our attention. There is a real danger that if oral evidence
is generally admitted in Convention cases it would become impossible for them
to be dealt with expeditiously and the purpose of the Convention might be
frustrated."
[11] Her Ladyship then went on to hold that, as neither of the two counsel
appearing in that case had made an application for oral evidence to be heard,
the judge was entirely justified, although there were irreconcilable issues
exposed in the affidavits of the parents as to the reasons for a visit to
Australia, in hearing the matter on the affidavit and documentary evidence and
coming to a conclusion on the available material. She went on to say at p 553 E-G to p
554A:
"Having said
that, the task of rejecting the sworn evidence of a deponent on contested
issues of fact without hearing oral evidence, and, in particular,
cross-examination on the affidavits, is not one lightly to be undertaken,
where, in a case such as this, the resolution of the disputed facts is crucial
to the decision whether the Convention applies at all. If the facts in issue are not crucial, oral
evidence would not be necessary. Equally,
..... if only one side is present and able to give evidence, that evidence, in
the absence of the other side, is unlikely to resolve the issue. But if both parties are present in court, some
oral evidence relevant to the issue would clearly be helpful in certain cases. With hindsight, it would have been helpful in
this case. But the admission of oral
evidence in Convention cases should be allowed sparingly.
If a judge is
faced with irreconcilable affidavit evidence and no oral evidence is available,
or, as in this case, there was no application to call it, how does the judge
resolve the disputed evidence? It may
turn out not to be crucial to the decision, thus not requiring a determination.
If the issue has to be faced on disputed
non-oral evidence, the judge has to look to see if there is independent
extraneous evidence in support of one side. That evidence has, in my judgement, to be
compelling before the judge is entitled to reject the sworn testimony of a
deponent. Alternatively, the evidence
contained within the affidavit may in itself be inherently improbable and
therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for
rejecting the written evidence on either side, the applicant will have failed
to establish his case."
[12] Certain observations on the reception of affidavit evidence in
Convention cases were also made by Lord Carloway at para 36 of his opinion
in D v D 2001 FamLR 66 at p 67. His
Lordship stated as follows:
"Applications
under the Convention are proceeded with under petition procedure because of its
summary and expeditious nature. The
rules concerning the admission of affidavits, which remain unusual in Scots
practice, are intended to avoid, if at all possible, the need for oral evidence
because of the potential delay that the receipt of such testimony can cause. It will usually be possible for the court to
reach a view on the essential facts of the case by looking at the contents of
the affidavits and the productions. I
have found that to be the situation in this case. Where there is a conflict between the
affidavits, the court may be able to resolve these conflicts by, for example,
determining which version is the more inherently probable or is supported by
extraneous evidence (see Re F (A Minor)
(Child Abduction), Butler-Sloss LJ at [1992] 1 FLR p553). If, however, the court wishes clarification or
expansion in certain points in the affidavits or productions then I can see no
prohibition in the rules prohibiting it from taking into account ex parte statements. It may deem it appropriate to obtain a further
affidavit or even order oral testimony on a point in certain cases, but in the
normal case the court should be able to reach a view with expedition rather
than delaying matters for the production of formal proof. If it can reasonably and fairly do so, in a
summary procedure, by taking into account what is said at the bar then it
should do so, albeit it may have to take some care when assessing the content
of what is said where it is not supported by affidavit or other evidence and
even more care if it is contradicted by such evidence."
The father's case
[13] The father avers that he and the mother agreed that she would
spend a period on holiday in Scotland
with the children from June 2005 and that she and the children would return to
the Netherlands
on or before 28 September 2005,
the date of his mother's birthday. The
mother left the Netherlands
with the children on 18 June 2005
and failed to return there with them on or before 28 September 2005. She
retained the children in Scotland
without his consent and has made it clear that she has no intention of
returning the children to the Netherlands.
In December 2005 she raised an action
against him in Inverness Sheriff Court
seeking residence and interdict against him removing the children from the
sheriffdom. That action was sisted on 26 January 2006. The retention of the children in the United
Kingdom by the mother was in breach of his
custody rights and is accordingly wrongful in terms of article 3 of the
Convention and he seeks an order for their return in terms of article 12. In the course of the second hearing, following
upon discussion of the matter, the father amended the petition to aver that, if
there was no agreement between the parties to the effect that the mother would
spend a period in Scotland with the children from June 2005 and return to the
Netherlands on or before 28 September 2005 (which is denied), the removal
of the children from the Netherlands on 18 June 2005 was in breach of his
custody rights and accordingly wrongful in terms of article 3 of the
Convention.
The mother's case
[14] The mother avers that the father acquiesced in the removal or
retention of the children in terms of article 13 of the Convention.
The evidence for the parties
(i)
The evidence for the father
[15] The evidence of the father himself is contained in his
affidavits numbers 6/7, 6/19, 6/22 and 6/23 of process. In his first affidavit no 6/7 of process,
dated 19 May 2006, he depones that when the relationship between himself
and the mother deteriorated the mother indicated towards the end of May 2005
that she wanted to spend some time in Scotland with the children and said that
if she went there with the children she would be back for his mother's 65th birthday
party on 28 September. The
children's maternal grandfather came from Scotland
to the Netherlands
on 16 June 2005,
stayed at their house for two nights and then travelled back to Scotland
along with her and the two children. The
father drove them to the airport.
[16] In his second affidavit no 6/19 of process dated 23 June 2006 he denies that he
agreed to the mother coming to Scotland
to live here permanently with the children. In about April 2005 they went to see a social
worker because of the problems they were having together and made a second
appointment with the social worker for 29 September
2005, the day after his mother's 65th birthday. Around April 2005 he agreed that the mother
should travel to Scotland
with the children so that she could see her parents and have a think about
their relationship. She did not tell him
that she wanted to remain in Scotland
permanently and had not said to him that they were separating. The flights for the mother and two children
were booked on easyJet from Amsterdam
to Glasgow. The date of the outgoing flight (following a
change made on 16 June) was 18 June and the date of the return flight
was 27 July. The date of the return
flight was changed to 24 September on 7 July. This change was made when the father was
visiting the mother and children in Inverness in July
and she told him that she wanted to stay on a bit longer. In July 2005 he had been working in Chester
and drove up to Inverness for a two week holiday with
the mother and children. He also visited
her on other occasions between 18 June and 24 September. When he did so he stayed at her parents'
house. He and the mother slept together.
He was sure that she would return to the
Netherlands with the children in September because she had promised him and his
mother that she would be back for his mother's 65th birthday in
September, they had made a second appointment to see the social worker on 29 September,
she had not notified the town hall in Tubergen of the departure of herself and
the children, their son M was on the list for a new school to start in
September 2005 and she had not cancelled his name from the list or asked him to
do so, she kept her Dutch bank account, she had a return ticket, she did not
tell friends and neighbours that she was leaving for good, she had not made any
arrangements to get her own house in Scotland before she left the Netherlands
and she stayed with her parents in Scotland.
In addition, she had two suitcases when she left the Netherlands
in June, one for her and a big one for the children. She left a wardrobe of the children's clothes
behind and also their toys. Although she
took family photo albums, she did not tell him in advance that she was doing so
and he found out about this only after she left. The night before she left they had a meal at
the house with her father, his parents, Annet Bergman and Nancy Elferink, but
it was not a "going away for good" party. When he visited the mother and children in Inverness
in December 2005 he was served with an initial writ at her instance seeking
residence and interdict. He did not then realise that there was anything he
could do about the children staying in Scotland. It was when he spoke to a Dutch lawyer in
late January or early February that he was told about the Hague Convention.
[17] In his affidavit no 6/22 of process dated 27 June 2006,
which is in response to adjustments made by the mother to her pleadings, he
depones that he visited the mother and children in Inverness from 9 to 23 July
2005 and thinks it was then that he noticed some of the photo albums of the
children were in her parents' house. He
had a bad feeling about that, but he still believed that she was coming back. He cannot recall the mother asking him to
bring anything back from the Netherlands
in July but he does remember bringing a teddy back for their son M. He was back in Inverness
from 11 to 16 August, during which period they all went on day trips and
he and the mother went out together to a restaurant on the Friday and Monday
evenings. On 6 September 2005 the mother moved out of her
parents' house in Inverness and into a bed and breakfast
establishment. He went to Inverness
on Friday 23 September. She told
him she was staying at a B & B but did not tell him where it was as she did
not want to do so. He never saw the B
& B. That Friday evening the two of
them went to a pub together and at the end of the evening she told him she did
not like and love him any more. She
asked him if he still loved her and he told her that he did. He asked her why she had told him that she did
not love him any more and they then had a big argument. The next morning, when he went to her parents'
house to collect his car, she told him that he could not see the children, but
he did see them that evening, and also the following day, when he and the
mother went on a short day trip with them. He tried to speak to her about what had
happened two days before, but she did not want to do so. The following day, he drove back to England
for his work. He knew then that she was
not coming back to the Netherlands
for his mother's birthday, but he still believed she would come back
permanently. At her request he booked to
go to see her for her birthday on 11 October, but when she told him on the
telephone on 1 October that she did not think it was a good idea for him
to come he cancelled the trip. On 31 October 2005 he went with
his mother to Inverness, taking with him a digital
camera as a birthday present for the mother. He and his mother stayed until 7 November.
While they were there he carried out
some repairs to the windows and locks of the flat in which the mother and
children were then living as he wanted the property to be safe for the
children. He thought she had been given
the flat by the council because she and the children could no longer stay at
the B & B. Even though she had that
temporary flat in Inverness he thought she would change
her mind and return to the Netherlands.
On 12 December 2005 he was in England
for work and was due to drive up to Inverness on 16 December 2005. During that week the mother asked him by text
message what day he would arrive. He
arrived at about 10.30 am on 16 December
and met the mother and children in town. In the afternoon while he was at her house he
was served with an initial writ by sheriff officers. He was confused, did not know what to say and
decided it was better to go home to the Netherlands
straight away. He was then fully aware
that the mother and children would not return to the Netherlands.
A solicitor in the Netherlands
advised him to find a solicitor in Scotland
and he made an appointment to see a solicitor in Inverness
on 4 January 2006. After 16 December
2005 he realised that the mother and children were not coming back
to the Netherlands
but he did not think there was anything he could do about it and he felt
helpless. He asked the mother several
times before 16 December 2005
if she would return to the Netherlands
with the children but she refused to do so. He spoke about it to people, including his
boss, who told him he thought he had no rights. No one told him about the Hague Convention. He spoke to people at the Town Hall and the
police in the Netherlands,
but no one could tell him what to do. They
told him to wait to see if it would all work out. It was not until he saw a Dutch lawyer in
January or February 2006 that he heard about the Hague
Convention, and that is why he had been so late with everything. When the mother moved into her house in
Kinmylies around March 2006 he sent her А1,000 and said that it was
specifically for a cooker, washing machine and fridge. He did not see this as helping the mother to
set up a permanent home in Scotland.
He did not want the children to be
eating junk food and he wanted them to have clean clothes. He saw the money he gave as an emergency
situation for the children. The mother
told him that she had no money to buy these things herself. The mother did not consult him about the
children's schooling and, although he had gone with her to pick up their son M
from the nursery, she was not happy about him speaking to the teachers himself.
Since December 2005 he has had contact
with the children at the beginning and end of January, in March and at the
birthday of their daughter S in May. On
the last occasion he went to Inverness with his mother,
sister and niece.
[18] In his affidavit no 6/14 of process Gert-Jan Jansink confirms
that he was present when the mother signed the custody documents relating to
the younger child S on 16 June 2005. Before she signed them both he and the father
explained their contents to her. He
himself explained to her in Dutch that her signing of the forms would give the
father joint custody of S. There was no
coercion or intimidation and she signed the forms entirely voluntarily.
[19] In her affidavit no 6/16 of process dated 23 June 2006 Nancy Elferink, aged 34 years,
depones that she visited the mother the day before she left the Netherlands
in June 2005. She asked the mother when
she was coming back and the mother said in September 2005, when she and the
father would discuss their future together.
[20] In her affidavit no 6/9 of process dated 23 June 2005
Annet Bergman, aged 52 years, the former next door neighbour of the
parties, depones that the mother came to Scotland because she felt homesick and
wanted to stay here for a holiday. The
mother said to her that she would return to the Netherlands
just before the grandmother's birthday on 28 September. The mother never said that she was leaving
permanently to live in Scotland
or that she was breaking up with the father.
[21] In her affidavit no 6/20 of process dated 27 June 2006
Joyce Simpson, the father's solicitor in Inverness, narrates her dealings with
the father, who first consulted her on 4 January 2006, particularly what
happened at the child welfare hearing at Inverness Sheriff Court on 26 January
2006, when the question of jurisdiction was raised in the action brought by the
mother.
[22] There were lodged on behalf of the father three emails in Dutch
from easyJet, nos 6/11, 6/12 and 6/21 of process, which supported what he said
in his evidence about the flight dates and the changes to them.
(ii)
The mother's evidence
[23] The evidence of the mother is contained in two affidavits,
no 7/1 of process dated 26 June
2006 and no 7/9 of process dated 27 June 2006. In her first affidavit she mentions that she
left the father for several months in 2002 shortly after the birth of their son
M. She states that, although she
returned to him, he behaved abusively to her and by the Spring of 2005 she had
realised that she could no longer continue to live with him. Shortly after his return from work in Chester
at the end of April or beginning of May 2005 she told him that she intended to
move back to Scotland
with the children on a permanent basis. She
could not remember exactly when the first conversation took place but it was
certainly several weeks before her departure on 18 June 2005. Both children had Dutch passports. She could find that of their son M, but not
that of their daughter S. She spoke to
the father on the phone when he was in England
and told him that she was looking for S's passport. He told her it was in the living room but it
was not there. She therefore applied for
a British passport for S and her father sent her M's British passport from Inverness.
She discussed her departure with members
of the father's family, in particular, his parents and his sister. His mother told her to arrange for her father
to come over from Scotland
to help with taking the children back. The
father's friends were also aware that she was leaving on a permanent basis. In particular, she told his friend Erwyn
Elferink about two weeks before her departure that she had had enough and
was leaving for good. A day or two later
Erwyn, his wife and family came over and his wife started to ask why she (the
mother) was going. Mrs Elferink was very
upset about it. The conversation was in
front of the father and Erwyn was speaking to the father about it while she was
speaking to Mrs Elferink. At the
father's suggestion she and the father contacted the doctor's surgery for a
referral to counselling. She told the
doctor there was no point as she wanted to leave on a permanent basis, but she
went to counselling with the father a few days before she left only because she
felt intimidated by him and his mother. Her
position remained unchanged. By that
stage she had become very sure in her own mind as to what she needed to do. The father had bought easyJet tickets earlier
in the year for a planned holiday in Scotland
for them and the children in July or August. When he realised that she was determined to go
ahead with the move he changed the tickets and purchased a single ticket for
herself, the children and her father to return to Scotland.
She is in no doubt whatsoever that the
father knew that she was moving back on a permanent basis at that time. She is aware that he may have said to others
that she was going on holiday but she thinks that that was more because he
could not bring himself to admit that his partner and children were leaving
him. Before she left he asked her to
agree to come back with the children for a short time for his mother's
birthday. She indicated that she would
go back for that visit but in reality she did so only because she was concerned
about his reaction if she did not go. It
was quite clear that she was leaving on a permanent basis. His parents were aware of it. Before she left all his neighbours came round
to say goodbye. Annet Bergman, her
daughter and son-in-law came round about two nights before she left and
were very upset and crying because she was leaving and they knew she was not
coming back. She eventually left for Scotland
with the children on 18 June. She
could manage to take with her only as much as she could carry, mainly toys and
clothes. She subsequently made
arrangements for the father to bring other items over. He was aware that the move was permanent.
[24] Immediately after her arrival in Scotland
she started making arrangements for accommodation and the children's schooling.
She applied for a council house and enrolled M in nursery. The father came to visit on 15 July. During his visit she told him that M had been
allocated a nursery place starting on 18 August. He bought M a bike and helmet costing over
г100 and a baby car for S. His parents
came over in October and stayed until just after M's birthday on 2 November.
She and the children had been in bed and
breakfast accommodation from 6 September until 20 October 2005, when they moved into a
flat in Inverness which was provided by the council as
temporary accommodation for the homeless. His mother bought her pots, pans and kitchen
utensils for the flat and his father bought a DVD player for the children. In January 2006 the father brought clothes for
the children. When he visited in
February 2006 she showed him the council house she would be moving into. On a visit in March 2006 he bought more
clothes for the children and a guinea pig and cage for them. He also provided
her with access to г900 to enable her to buy a freezer, cooker and washing
machine for the property.
[25] Before she left the Netherlands
she had hoped that they would be able to deal with things on an amicable basis.
She had been happy for him to have
contact with the children and initially that seemed to go very well. She thought that difficulties began in October
when the father realised that the lives of herself and the children were truly
moving on. It was at that time made
clear to her that he would, given the opportunity, take the children back to
the Netherlands
without her permission. Against that
background she felt she needed to raise an action in the Sheriff
Court. The
father continued to have contact with the children and everything he did
suggested to her that he accepted that she and the children would be living
permanently in Scotland.
He even at one stage suggested that he
would come over to live with them. She
told him that there was in her view no prospect of a reconciliation and that
that would not be possible. It was when
he came over in March 2006 that his attitude really changed. When he came to visit her and the children at
the house her new partner was there laughing and playing with the children. The father was clearly not happy that she had
a new man in her life and that the children were getting on so well with him. On 26
March 2006 he behaved in a very intimidating manner towards her by
standing in the doorway to prevent her leaving the room and following her
wherever she went, even into the garden.
[26] She was very surprised by the father applying under the
Convention for the children to be returned to the jurisdiction of the Dutch
Court. She
never tried to hide from him the fact that she was leaving permanently and that
was discussed with his friends and family before she left. He permitted and assisted the move to Scotland.
At no time did he say to her that he
thought she was going back only for a holiday. She thinks he always hoped for a
reconciliation and he told her she could come back anytime she wanted but she
at all times made it clear to him that that was not a possibility. After their move to Scotland
he bought the children items which they could use in Scotland
and assisted her in buying necessary items for her house. It is true that she said she would go to the Netherlands
for his mother's birthday and that she did not go. She did not tell him before leaving that she
needed to go to clear her mind as she felt stressed and needed some rest. She was open and honest with him that she
needed to leave permanently. She never
had any intention of attending the further appointment with the counsellor. She was not aware of the fact that forms which
she signed gave him custody rights as her knowledge of Dutch was limited. She did not realise that the father had
enrolled their son M for school the year following her departure.
[27] In her supplementary affidavit the mother states that Gert-Jan
Jansink is the son-in-law of Annet Bergman and was present when she signed the
custody documents relating to S. The
father told her that the document was just if anything happened to her then it
would say he was S's father. She asked
Gert-Jan to read the paper and he told her that was what it said. She then signed it. She never told Annet Bergman that she was
homesick or going back to Scotland
for a holiday. Nancy Elfrink knew
she was leaving for good too and was crying her eyes out. She also told Karin Elfrink she was
leaving. When the father came to Scotland
in July 2005 he did not stay with her at her parents' house. She did not know she had to tell the Town Hall
about leaving.
[28] In his affidavit no 7/2 of process dated 26 June 2006 the mother's father speaks of
having posted M's passport to his daughter in the Netherlands
and of his visit there in June 2005 to accompany his daughter and the children
to Scotland. When he met the father and spoke to him in the
garden he told him that he had come over to bring the mother and children back
to Scotland and
that they would not be returning. He
told the father that the mother was leaving him for good. The father did not say anything and just
walked back into the house. The witness
also walked back into the house and asked his daughter to go onto the Internet
to book tickets. When the father heard
this he said there would be no need to book tickets as they had already booked
for a holiday in July and he could get the tickets changed and buy him a ticket
on the same flight as the mother and children.
[29] In her affidavit no 7/3 of process dated 26 June 2006 the mother's mother speaks of
her visit to the parties and children in the Netherlands
in May 2005. The mother told the father
in her presence that she was going to leave him. She made it quite clear to him that she
intended to leave with the children and that she would not be coming back. She is not sure if he actually believed it at
first. The mother also told other
members of his family that she was leaving.
[30] No 7/5 of process is a letter from the family's doctor in the Netherlands
dated 21 June 2006 in
which he states that he saw the father on 27 June and 25 July 2005. A sentence in the letter states "He said that
(the mother) leaves him en (sic) she
went to her parents in Scotland." No 7/10 of process is an email from the same
doctor dated 27 June 2006
in response to a letter from the mother's solicitors. In it he states: "At 27 juni (sic) he told me that his wife would
leave him. He did not say when. At 25 July my colleaqae (sic) has seen him. His wife has left him, but again he says not
when. I am sorry, I cannot help you further."
Submissions for the parties
(i)
Submissions for the mother
[31] Mr Speir for the mother pointed out that the dispute
between the parties centred on the basis upon which the mother left the Netherlands
with the children on 18 June 2005.
The father maintained that they came to Scotland
for a holiday and were due to return on or before 28 September 2005. The mother's position was that her
relationship with the father had broken down and she was moving to Scotland
permanently with the children. The father's
position therefore was that the period up to 28 September was holiday and
thereafter there was a wrongful retention of the children by the mother. On behalf of the mother it was contended that
this was a wrongful removal as at 18 June
2005. (The day following
this submission the father amended the petition to plead an alternative case of
wrongful removal as mentioned above and the case therefore falls to be
considered as one of wrongful retention, alternatively wrongful removal.)
[32] Mr Speir asked me to accept the mother's evidence, which
he submitted was supported by all the facts in the case. He founded on the doctor's letter and email as
well as the easyJet documents nos 6/21 and 6/12 of process. He asked me to reject as incredible and unreliable
the affidavit evidence of Annet Bergman and stated that I should disregard
it as unsafe. So far as acquiescence was
concerned, he founded upon the financial and other assistance which the father
had provided since the children have been in Scotland
and the absence of demands or requests from him for the summary return of the
children to the Netherlands,
even after the Sheriff Court
proceedings had been raised in December 2005. If the children were not returned by the
expected date, you would expect him to have done something about it.
(ii)
Submissions for the father
[33] Mrs Innes for the father stated that her primary position
was that this was a wrongful retention, but accepted that if I were to find
that there was no agreement about the initial removal it fell to be treated as
a wrongful removal. She founded upon the
father's affidavit evidence and six other extraneous factors which she
specified and which I think it unnecessary to mention in asking me to hold that
there was an agreement between the parties for the mother to stay in Scotland
with the children for a limited period expiring before 28 September 2005. So far as acquiescence was concerned, if there
were no such agreement, his actings from 18 June would fall to be
considered, whereas if there were such an agreement only his actings from 29 September 2005 fell to be
considered. On the evidence he had a
reasonable belief that she would return on or before 28 September. If that were correct, it would vitiate any
question of acquiescence before that date. His position over the period from 28 September
to 16 December was that he wished to effect a reconciliation. In her averments in condescendence 3 of
the Sheriff Court action
the mother averred that he continued to seek a reconciliation and demanded that
she return with him to the Netherlands
and in condescendence 4 she averred that he had stated that he still
wished a reconciliation. Those averments
bore out his position that he was not acquiescing up till December. Looking at the period up to 16 December
2005 as a whole, he did not have a subjective intention to acquiesce, he did
not in fact acquiesce, and his actings did not fall within the exception
mentioned in the case of In re H (1998)
as there was nothing in them to show that he clearly and unequivocally
demonstrated to the mother that he would not insist on the summary return of
the children. Indeed, the very fact that
she raised the Sheriff Court
action showed that she had serious concerns about his attitude towards the children
remaining in Scotland.
With regard to the period from 16 December 2005 until 5 April 2006 (the date of
presentation of the application under the Hague Convention), the father's
position was set out in his affidavit of 27 June 2006 (no 6/22 of process). He was fully aware that the mother and
children would not return to the Netherlands
once he was served with the Sheriff Court
writ. It took some time to present the
application under the Convention after the Sheriff
Court action was sisted as a significant number of
documents had to be obtained.
Discussion
[34] There are material discrepancies between the affidavit evidence
presented on behalf of the father and that presented on behalf of the mother
which I am unable to resolve, but which I think it is unnecessary for me to
resolve in order to determine the issue in these proceedings. It is in my opinion clear from the evidence
which has been presented that, contrary to the averments made by the father, he
and the mother did not agree that she would spend with the children a period in
Scotland from 18 June 2005 and that she and the children would return to
the Netherlands on or before 28 September 2005. No doubt
the father was under the impression that there was such an agreement,
based on the return tickets, the mother's admitted statement that she would
return for his mother's birthday and the second appointment with the counsellor
fixed for 29 September 2005, but I am satisfied from the evidence of the
mother that when she left the Netherlands with the children on 18 June
2005 she had no intention of returning there with them and it was her intention
to stay permanently with them in Scotland thereafter. That that was her intention is supported by
the steps which she took immediately following her arrival in Scotland
to arrange accommodation for herself and the children and a nursery placement. I therefore regard the removal of the children
from the Netherlands
on 18 June 2005 as a
wrongful removal in terms of article 12 of the Convention. If I am wrong about that, and there was an
agreement between the parties that the mother should stay with the children in Scotland
up to 28 September 2005,
then of course the case would require to be considered as one of wrongful
retention from 28 September 2005.
[35] So far as the question of acquiescence by the father in terms
of article 13 of the Convention is concerned, I am satisfied that,
essentially for the reasons given by Mrs Innes, no such acquiescence has
been established by the mother. In my
view, the raising of the Sheriff Court
action by the mother in itself negates any question of acquiescence by the
father. The averments in that action to
which Mrs Innes drew attention clearly demonstrate that the mother
considered that the father wished the children back in the Netherlands.
That was obviously the reason why she
sought interdict against him removing the children. So far as concerns the financial and other
assistance which he provided for her and the children, I think it would be a
very sorry state of affairs if the rendering of such assistance out of concern
for the welfare of his children were to be construed as amounting to
acquiescence on his part. Neither should
his attempts at reconciliation or to persuade her to return to the Netherlands
with the children be so construed.
Applying the law on acquiescence as stated by the House of Lords in In re H (1998) in the passages which I
have quoted above, I hold that nothing done by the father amounted to
subjective acquiescence by him in the removal or retention of the children or
to a clear and unequivocal demonstration to the mother that he was not
asserting or would not assert his right to the summary return of the
children.
Decision
[36] As I am satisfied that the children have been wrongfully
removed to, or alternatively wrongfully retained in, Scotland, that a period of
less than one year had elapsed from the date of the wrongful removal or
retention at the date of commencement of these proceedings and that
acquiescence on the part of the father in their removal or retention has not
been established, I shall, as I am bound to do under article 12 of the
Convention, order their return to the Netherlands forthwith.
