C v. C [2008] ScotCS CSOH_42 (10 March 2008)

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

[12] It was accepted that the removal of the children had been wrongful, that the present proceedings were commenced more than one year after the date of wrongful removal, that each of C and S had stated objections to being returned, and that both had reached an age and level of maturity at which it would be appropriate to take account of the view expressed by each.

The First Respondent's Argument

[13] The first respondent argued that all of the children were now settled in their new environment. It was explained that they lived in local authority housing which was of adequate size for their needs. The eldest child M and the first respondent's own mother also lived with them and assisted with the care of the children. He himself did not work and to date had acted as a full time carer. The eldest child M was a full time student taking an HNC course in European business administration and languages at a college in Dundee. He wishes to remain in further education and work his way up to university level. The child C is in third year at a local school. She is studying nine subjects with the intention of sitting Standard Grade examinations in 2009. These subjects include English, French and Spanish. It was said that she had settled well at school and had made friends with whom she socialised outside of school. She attended dancing classes and was participating in the Duke of Edinburgh awards scheme. In this connection she worked as a volunteer on Saturday Mornings at a local animal welfare centre run by the Scottish Society for the Prevention of Cruelty to Animals. The first respondent explained that all of the family were members of the Christian Church and attended Church every Sunday. C and her older brother together attended a Christian evangelical and musical camp in St Andrews in the summer of 2007 and planned to do so again this year. An affidavit provided by the Deputy Rector of her school vouched that she had been placed in an age appropriate year, was making reasonable progress with her studies, had a good attendance level and appeared happy in the school.

[14] The child S was in his last year at primary school. He was said to be a sociable young boy who enjoyed sporting activities. He attended basketball and athletics classes at school and had followed these up by attending events organised by the local authority during school holidays. He had participated in athletics events and had come first in the local schools high jump competition. He was a member of a computer club at school. He too had friends that he saw out of school. He and his younger sister attended Sunday school and were members of a youth club organised by a local branch of the Elim Pentecostal Church. An affidavit provided by the Head Teacher at S's school vouched that when tested on arrival he was found to be at least at the level which would be expected for a boy of his age. The same affidavit vouched that he integrated fully into the life of the school very quickly, that he is particularly independent for his age and is on track educationally.

[15] The child O is in primary five at the same school as her brother. She is musical and takes both violin and recorder lessons. She has taken part in school performances and is a member of her school choir. Like her brother she also attended local authority classes organised during the school holidays. Like her brother she was said to have established friendships at school very quickly. She is a confident child who is meeting the educational standards for her age. In addition to her other activities she attends a sign language club which meets on Tuesday lunchtimes at her school. The Head Teacher's affidavit describes both S and O as children who seem happy and content. She explains that she has met their elder siblings and the first respondent. She describes the family as being open and affectionate and notes that they speak about each other in a very caring way. In the same affidavit the Head Teacher also states that neither S nor O has ever spoken to any teacher at the school about their mother.

[16] Counsel for the first respondent recognised that the extradition proceedings directed at him would be likely to have an impact on the circumstances of the children and would be likely to do so quite soon. Although I was told that he was contesting extradition, no explanation of the basis of this was given to me on his behalf and no attempt was made to persuade me that there was a reasonable prospect of his opposition being successful. I was advised though that if returned to France he would have the opportunity of serving his sentence or of seeking a re-trial. I was not told what if any defence he would have to the charge of which he stands convicted, nor what his arrangements would be whilst awaiting any new trial. I was not advised of the existence of any early release provisions within the French penal structure. Against this it was said that the children would be able to remain living in their home in Dundee. Their grandmother was prepared to stay and provide day to day care. She had a car and was able to drive the children to and from their schools or leisure activities. The eldest boy M was also prepared to assist in the care of his sisters and brother in addition to attending to his own studies. Each of the grandmother and M already participated to a considerable extent in the family care arrangements. I was taken to the reports which had been prepared by a social worker in Dundee as to the family's present circumstances. These were seen to be indicative of a close knit unit and the reports were generally supportive of the arrangements made for the care of the children.

[17] Counsel for the first respondent referred me to the cases of Perrin v Perrin 1994 S.C. 45, Soucie v Soucie 1995 S.C 134, J v K 2002 S.C. 450, Cannon v Cannon [2005] 1 WLR 32, In re M (Children) (Abduction: Rights of Custody) [2007] 3 WLR 975 and Singh v Singh 1997 S.C. 68. On the basis of the law as explained in these cases and on the evidence adduced, counsel for the first respondent invited me to hold that the children are all settled in Scotland and in their local community. This could be seen in a variety of ways, including their educational achievements, their friendships and their extra-curricular activities. On this basis she submitted that the exception in article 12 of the Convention had been established and I was not bound to order their return. In these circumstances the matter would become one for the exercise of my discretion. As part of this discretionary exercise I could take account of the wishes of the children as expressed in their answers and affidavits. In so far as the child O was concerned, although she was not represented I was referred to an affidavit of a solicitor named Yvonne Robbie. In that affidavit Ms Robbie explains that she took a statement, on a date not given and in circumstances not explained, which she says sets out the child's view on returning to France. The attached statement bears the handwritten date 6/02/08 and notes that the child does not wish to leave her school and does not wish to return to France.

The Submissions for the children

[18] Counsel for each of C and S took me through the affidavits and other material lodged on their behalf. They sought to reiterate the points relating to schooling, social connections and other aspects of their lives in Dundee which had already been mentioned on their father's behalf. Each sought to argue, independently of their father and of each other, that settlement for the purposes of article 12 of the Convention had been demonstrated. Each counsel also identified the nature of the objection which each child held to being returned to France and sought to amplify that. In addition to the cases referred to by counsel for the first respondent, counsel for C and S referred me to M Petitioner 2005 S.L.T. 2 and In re D (a child) [2006] UKHL 51.

[19] On C's behalf Mr Jack took me through a little of the history of her movements since July 2005. He told me that she had been at school in the Philippines. He described the time during which she has been in Dundee as the most settled period she has had. He pointed out the educational opportunities which were now available for her and said that she was at a crucial stage in her education. In relation to her objection to being returned to France, Mr Jack said that it was linked to being settled. She objects to being returned in part because she sees herself as settled here. He drew my attention to the parts of her affidavit where C expressed her concerns about how she would cope at school in France. C also made it clear that she does not wish to leave her older brother nor have any of the children separated. Mr Jack made the point that since C would be 15 in just over two weeks time she was almost the oldest that any child could be when asking for its views to be taken account of in an application presented under the Convention in this jurisdiction.

[20] On S's behalf Ms Brabender explained to me that S did wish to see his mother and had felt the same whilst apart from her. Although it was not in his affidavit, she explained that there was a reason why he made no effort to contact his mother after leaving France. He did not wish to raise any issue concerning his mother with his father in case it caused strife. Ms Brabender did not know whether S had raised the issue of his mother, or of contact with her, with his older brother or sister. On the issue of settlement Ms Brabender submitted that there was evidence to vouch this and which was independent of what either S or his father said. It could be found for example in the affidavits of his head teacher and of Mr White, the leader of the Christian club which S attended. Counsel also sought to vouch settlement by drawing a comparison with the progress S was making now and the way in which he was described by various of the professionals who had dealings with him whilst he lived in France. To this end she drew my attention to certain of the reports lodged by the petitioner which had been prepared during the currency of the French divorce and custody actions. When it came to examining the question of his own views it was submitted that S objected to being returned to France because he was settled in Dundee. He didn't want to have to change school. He objected because he didn't want the French Court to decide where he was to stay and he objected because he didn't speak French.

Submissions for the Petitioner

[21] Mr Mitchell QC for the petitioner submitted that in order to answer the question of whether settlement for the purposes of article 12 of the Convention had been demonstrated, the court would require to include in its assessment an examination of the children's history to date and of their future arrangements. He pointed out that even now there was no explanation of which countries the children had been in throughout the period since July 2005, of what they were doing whilst in each location or why they moved on. Although it seemed they had been at school in the Philippines there was no information as to what led them to leave. Nor he said was there any explanation as to what had brought them to Dundee, a city with which neither the father nor any of the children had a prior connection. Their future arrangements he submitted were uncertain to say the least. He submitted that it was unrealistic to suggest that their sixty-four year old grandmother, assisted by their seventeen year old brother, could provide adequate and ongoing care. He raised the question of who would be looking after and caring for the child O in two or three years time as the elder children came to be living more of their own lives and wishing to move on to work or further education. He also drew attention to the lack of any proposed arrangements regarding contact with their mother. Each child wished to have contact with their mother yet no suggestion was offered as to how this would be achieved with them living in Dundee and her living in South-East France. He also raised the question of what their father would do having served a prison sentence in France. He submitted that with his track record of travelling around the world there was no reason at all to suppose that on being released he would return to live in Dundee. He pointed out that the first respondent did not even say what his intentions were in his affidavit. Mr Mitchell also submitted that in considering the issue of whether settlement of the relevant nature had been demonstrated it was important to bear in mind the history of what had happened. If one did so he said it became clear that the picture was of an abduction of a type rarely seen, perpetrated by a manipulative father who cold bloodedly sought to excise both their mother and France from the lives of the children. He said that the question of whether settlement had been established to the requisite extent had to be examined in the light of the policy of the Convention, which included the deterrence of child abduction.

[22] When it came to the arguments advanced under article 13 of the Convention Mr Mitchell restricted his submissions to the weight to be given by the court to the objections stated and to the question of whether on a proper analysis it would be right to exercise my discretion in favour of return. To these ends he sought to examine what it was that each child was saying and why they were doing so. This was important in order to understand to what extent the objections were "authentically their own". As part of this exercise Mr Mitchell noted that the first respondent's plea in law to the effect that there was a grave risk that the return of the children to France would expose them to physical or psychological harm or otherwise place them in an intolerable situation, had been departed from. Despite that, each of C and S included in their affidavits certain concerns about returning to live with their mother on account of what they said were aspects of her previous behaviour towards them. In order to properly weigh these concerns and to determine to what extent, if any, they were the consequence of their father's influence, it was necessary to examine certain of the reports prepared during the currency of the French divorce and custody litigation. He drew my attention to what he said was a history of unsupported claims which the first respondent had made against the petitioner during this period. Having done so Mr Mitchell submitted that this documentation vouched the fact that throughout the process in France the father had been a disruptive and manipulative influence. He submitted that this remained the case and was evidenced by what he called the extraordinary conflict between the proposition that the children had wanted to contact their mother whilst away, but that no effort to do so had been made. The same he said could be seen from the fact that in their affidavits both C and S said that they would like to see their mother and have contact with her. Despite this and despite the efforts which she had made with the assistance of the French Consulate since discovering their whereabouts, contact had still not taken place until the last day of the hearing. Mr Mitchell submitted that the only logical explanation to account for this state of affairs was manipulation and control on the part of their father. This was echoed in the only form of explanation which had been offered up, namely that given on S's behalf by his counsel, that "he had wanted to avoid strife". As a further aspect of the first respondent's behaviour Mr Mitchell informed me that, as he understood it, he was seeking to defend the extradition proceedings on the basis of a claim that his rights under article 8 of the European Convention on Human Rights would be interfered with should he be returned.

[23] Further, Mr Mitchell submitted that the objections which were stated could not be met by refusing to make an order for return. He pointed out that if the children's objection to being removed was based on a sense of stability having been achieved during their time in Dundee, then that was about to end in any event, with their father's incarceration and with their mother seeking to exercise contact. He described the concerns expressed about schooling as speculative in the absence of any expert evidence led on the part of the respondents. In the absence of the first respondent demonstrating that the child O had become settled in her new environment, in the sense contemplated by article 12 of the Convention, I would be bound to order her return. Counsel raised the question of what effect this would have on the objections stated by C and S and pointed out that there was no consideration of such an outcome in the affidavits lodged on behalf of any respondent.

[24] In all of these circumstances Mr Mitchell invited me to hold that it had not been demonstrated that the children were now settled in their new environment, in terms of article 12 of the Convention and moved me to make an order for the return of each child to France. Alternatively, if I was satisfied that the requisite degree of settlement had been established he invited me to exercise my discretion by nevertheless making an order for the return of each child to France. He invited me to take account of the objections advanced by each of C and S but to hold, in the exercise of my discretion, that no effect should be given to them. In doing so he referred me to the cases of M Petitioner, W v W 2004 S.C. 63, In Re M, In Re D, Soucie v Soucie, P v S 2002 FLR 2, and Cannon v Cannon.

Discussion

[25] At the hearing before me there was little by way of disagreement between the parties as to the law to be applied. There was however some discussion as to the effect of their Lordships' decision in the case of Re M. Some of that discussion centred around what effect, if any, this decision had on the advice given to judges in the Family Court in England by the Court of Appeal in Cannon v Cannon. In Cannon the court dealt with two separate issues:

1. What was the proper construction of the phrase "the child is now settled in its new environment", and

2. Once the defendant has proved that the child is now settled in its new environment, does the court nevertheless retain a residual discretion to order the child's return.

When giving the judgement of the court in Cannon, Thorpe LJ, in addressing the second issue, made certain comments as to the approach to the exercise of discretion under the Convention (para 38). He seemed to suggest that if the court was exercising a discretion available under the Convention then it would require to do so having due regard to the overriding objectives of the Convention. When the House of Lords came to hear Re M it was asked to consider the scope and application of the exceptions to the duty to return children wrongly removed contained within articles 12 and 13 of the Convention. In particular, as can be seen from paragraph 9 of the speech of Baroness Hale of Richmond, it was asked to examine the proper approach to the exercise of discretion once one or more of those exceptions has been established. The case of Cannon was fully before their Lordships. At paragraph 28 Baroness Hale records that counsel for the mother and counsel for the children both asked the House to overrule the decision in Cannon. In the result their Lordships expressed only the most modest criticism of the decision in Cannon. It is to be found at paragraph 43 where Baroness Hale says:

"My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would therefore respectfully agree with Thorpe LJ in the passage quoted at paragraph 32 above, save for the word "overriding" if it suggests that Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not".

[26] The decision in Cannon was not overruled and no other criticism of the advice given was voiced. I should also say that contrary to a submission made by counsel for S, it is clear that in paragraph 42 of Re M Baroness Hale is describing a bundle of considerations which may be taken into account in the exercise of the court's discretion under the Convention, should it have reached the stage of holding that an exception under article 12 or 13 had been made out. This is obvious from the fact that it features as part of the discussion commencing at paragraph 32, under the heading "Discretion under the ordinary law and under the Convention". Finally, in this context, I should perhaps note that whilst no counsel was able to inform me as to the eventual outcome for the child in the case of Cannon, it is clear from paragraph 27 of Re M that the court held that she was settled and in the exercise of its discretion refused to order her return.

[27] Since I am dealing with an application founded on the terms of the Convention it is necessary to start by bearing in mind what the Convention seeks to achieve. The objects of the Convention are (a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and (b) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. These objects reflect the principle that it is in the best interests of children in general to have custody determined by the court of their habitual residence. However, the Convention itself recognises some limited and precise circumstances when it will not be in the best interests of such children to return them to the country from which they have been wrongfully removed. Thus it provides that the court may decline to make an order for the child's return in the circumstances provided for by each of articles 12 and 13.

Article 12

[28] The proceedings in this application were not commenced until more than one year after C, S and O were wrongfully removed from France. Should it be demonstrated that any or all of them are now settled in their new environment I will not be bound to make an order for return of the child, or children, so settled. In such an event whether to make an order or not is a matter to be decided in the exercise of my discretion. However, if settlement in this sense is not established, I will be bound to make an order for return, unless for some other reason I am entitled not to do so.

[29] The party arguing that the court should decline to make an order carries the burden of establishing that the requisite degree of settlement has been demonstrated. What then is meant by the phrase the child is now settled in its new environment? It clearly means more than mere adjustment to surroundings. It is accepted that the concept of "settled" has two constituents. It has a physical element of relating to being established in a community and an environment and it has an emotional constituent denoting security and stability. In cases where settlement is argued the court will need to examine the evidence relating to these twin constituents and ask itself whether that evidence demonstrates that the interest of the child in not being uprooted is so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place. In cases where settlement is argued on account of wrongful removal followed by concealment, further considerations can arise. In such cases a broad and purposive construction of the phrase under discussion may be appropriate in order to fully reflect the factor of concealment or subterfuge which has contributed to the passage of time. The extent to which it will be appropriate to take this purposive approach may depend on the degree of the abductor's turpitude and the tension, if any, which exists between this factor and the quality of the environment thereby achieved. All of these propositions I take from the cases of Soucie and Cannon.

[30] In the present action it is undoubtedly the case that all three children appear to be relating well to their educational and social environment. Counsel for the respondents relied upon the discussion as to what constituted the new environment to be found in the judgment of Bracewell J in Re N (Minors) (Abduction) [1991] 1FLR 413 @ 418 C-D. That decision had been referred to and adopted in various of the subsequent cases to which I was referred. The quote relied upon was that the new environment must encompass "place, home, school, people, friends, activities and opportunities". I accept without hesitation that the evidence in this case has linked the children to each of these considerations. What matters though is the nature and extent of connection with these constituent parts of the concept of the new environment. In order to understand what Bracewell J saw as the type of link which would be eloquent of settlement, one has to read the passage relied upon in full. It commences as a consideration of what had been meant by a phrase "long term settled position" as had been used in an earlier case. She then says:

"The phrase long term was not defined, but I find that it is the opposite of transient; it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word new is significant, and in my judgement it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment."

When the Inner House came to examine the meaning of article 12 in the case of P v S it acknowledged that there was no warrant for importing the phrase "long term" into the meaning of "settled". However they agreed that it was correct to contrast it with transient and otherwise followed the approach of Bracewell J, including acknowledging the need for a projection into the future. Certain of the circumstances of P v S find an echo in the present case. Equally the opinion of the court at paragraph 45 is illuminating. I quote from two passages in that paragraph where the court expands upon the meaning of settled for these purposes:

"A situation which is stable is one which can reasonably be relied upon to last, as matters stand, and which does not contain indications that it is likely to change radically or fall apart. Equally, if the circumstances do not afford a basis for such reliance, and contain elements indicating that change is liable to occur, it will be less acceptable to describe them as stable, or to hold that a child in these uncertain circumstances can properly be described as settled in his new environment."

"Even if, like all the other terms, the expression "long-term" is not ideal we are in no doubt that in judging the present situation, and asking whether a child is settled at the present time, projection as to what is liable to happen into the future is an inherent element in the word "settled", and reference to the intention of others, and in particular the abducting parent, very likely to be essential. Indeed, the justification in principle for an exception from the general rule, when a child is settled in his new environment, seems to us to be found in the fact that the continuance of his present circumstances into the future looks likely, and ought not to be interfered with. If no such continuity into the future was expected, it is hard to see why the status quo should be favoured as an exception."

[31] When I come to consider the life which the children in the present case now have in Dundee, the first question which occurs is, are their circumstances any different from those which pertained when they were in the Philippines? They lived there for a period of around ten months. They went to school there. Yet they were evidently not settled, since they uprooted and found themselves in Dundee, without any apparent detrimental consequence. The same evidence which is relied upon to show their well being in Dundee also seems to demonstrate that they integrated easily and well, despite having spent the previous year and a half in an entirely different cultural environment. There is no evidence in any of the affidavits, or other sources, to explain or qualify any of this. Nor is there any suggestion that having arrived in Dundee an attempt to normalise their circumstances was made. There was still no contact with their mother. Like Lord Bonomy in P v S, I find the absence of an affidavit from anyone whom the first respondent, or even C or S, has taken into their confidence to be a conspicuous omission. The comment in the affidavit of the primary school Head Teacher (No. 20/5) to the effect that the first respondent had given her an insight into the children's move to Dundee serves to focus the matter. What was she told? No answer is provided in her affidavit and I would be slow to infer that the father told her he was a fugitive from justice. The same witness's comment, in the affidavit lodged by the first respondent (No. 7/19), that nether S nor O has ever even mentioned their mother to any teacher is quite remarkable and serves to demonstrate how far from normality the children were living. These features of the children's lives in Dundee are indicative of still living in a sense of instability. For reasons which I will develop more fully later, I agree with Mr Mitchell that the explanation for lack of any contact between the children and their mother throughout their travels, and even after coming to Dundee, lies in the influence exerted over them by their father. I see no reason to conclude other than that he has led them to their various destinations and that they would have little choice but to leave again with him, were he to decide to go. Nothing in his history, or in his conduct since arriving in Dundee, persuades me that he saw himself as having reached the end of the road on the run.

[32] I also take the view that the first respondent's conduct in this case is something which ought to be taken account of when assessing whether he can successfully argue that settlement has been established. Thorpe LJ in the case of Cannon supported the conclusion that it would be very difficult indeed for a parent who has hidden a child away to demonstrate that it is settled in its new environment. He specifically acknowledged (para 54) that the degree of wrong in abduction cases would vary from case to case, and clearly saw the degree of wrong as something which could impact on the ease with which settlement could be established. In the present case Mr Mitchell submitted that the wrongful removal was cold blooded, carefully planned, carried out in the face of the orders of the French Court, pronounced in proceedings which he contested at first instance and appellate level, and was carried out in defiance of all professional assessment of where the best interests of the children lay. It is certainly correct that the lengthy French proceedings, as demonstrated by the productions lodged, were characterised by a sophisticated approach to the question of the children's interests. Over the three years or so of the family's involvement with the French legal system reports were prepared for the assistance of the courts concerned on a regular basis, from a variety of professionals in different disciplines, who worked together in a co-ordinated fashion. Those who reported included social workers, educationalists, psychologists and psychiatrists. There was a consistent unanimity of view which was reflected in the decisions arrived at by the courts.

[33] In my opinion there was much force in the descriptions applied by Mr Mitchell to the nature of the first respondent's conduct. He made a selfish and determined effort to excise their mother from the lives of his children. He was successful in his efforts over a period of years and showed no indication of ever relenting in his determination. In taking account of this factor I do not see myself as engaging in moral condemnation of the sort Baroness Hale warned against at paragraph 56 of her speech in the case of Re D. In my judgement I am doing no more than assessing the level of the first respondent's criminality. In this case I can do so on the basis of the features described by Mr Mitchell, which are not in controversy, and in light of the account given of his actions in the first respondent's affidavit. In any event, as I have indicated, this approach is consistent with what I see as the helpful advice given in the case of Cannon. The case of Cannon does not seem to have been referred to in Re D, which dealt with the very different question of whether the removal was wrongful. Had Baroness Hale intended to modify the advice given by the Court of Appeal I would have expected her to have made that explicit when the case of Cannon was before the House just over a year later in the case of Re M. There was then no criticism of what the Court of Appeal had said about how the phrase "the child is now settled in its new environment" was to be construed and Baroness Hale's own comments, at paragraph 42, about the importance of sending out the message that there are no safe havens among the contracting states, seem to me to be consistent with what Thorpe LJ was saying.

[34] The next factor which I consider it right to take account of is the stability of the children's current domestic circumstances. I have been given no reason to proceed on any other basis than that the first respondent will shortly be extradited to France and will there serve a prison sentence. It is obvious that this will have a radical effect on the children's circumstances. To my mind no proper appreciation of this is found in any of the affidavits lodged. The proposition appears to be that temporary arrangements can be put in place on the assumption that the first respondent will return as a full time carer on his release. I agree with Mr Mitchell that such an assumption is not necessarily even warranted given his track record, the absence of any declared intention on his part and the fact that by then, to one extent or another, the children's mother will have returned to their lives. It is, in my judgement, clear that a projection into the future demonstrates anything but the sort of stability, or the permanence, which Bracewell J had in mind as connoting settlement. Applying the guidance which she gave, and that given by the Inner House in P v S, I am satisfied that this factor points strongly away from a conclusion that the children are settled in their new environment.

[35] Weighing the factors relating to the children's educational and social circumstances against the factors I have identified above I have arrived at the conclusion that the first respondent has failed to establish settlement of any of the children concerned in the sense provided for by article 12 of the Convention. Article 12 was also of course relied upon separately by each of counsel for C and S in seeking to persuade me that I should not make an order for return. The circumstances which they relied upon were of course almost identical to those relied upon by their father. I recognise however that in considering the arguments advanced on their behalf, it might not be right to take account of the nature of their father's conduct in the way contemplated in Cannon. However, aspects of what he has done do directly impact upon the question of whether they are settled. It is he who has exposed them to so many different places of residence. It is he who created the artificial environment in which their mother had no place or role. Once these features are present they contribute to the assessment of stability and the emotional component of settlement, regardless of who is to blame. Accordingly, even if I put aside any question of the first respondent's turpitude when weighing the submissions made on behalf of C and S, there remain aspects of their circumstances which point away from settlement being established. In addition, the circumstances surrounding their immediate and medium term future are so uncertain as to count strongly against them being properly described as settled in their new environment. Taking these factors in combination I have arrived at the conclusion that even on this approach, neither C nor S have independently satisfied me that they are now settled in their new environment, in the sense that that phrase has been interpreted in the authorities which I have mentioned.

Article 13

[36] Article 13 of the Convention provides that notwithstanding my decision in relation to the application of article 12, I will not be bound to return a child concerned if any of certain other circumstances are established by the person opposing return. Three distinct exceptions are provided for. They are:

If the person having care of the child was not actually exercising custody rights at the time of the removal
If there is a grave risk that return of the child would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation, and
In the exercise of its discretion, the court may refuse to return the child if it finds that the child objects to being returned and has reached an age and degree of maturity at which it is appropriate to take account of its views.

[37] Each of the first respondent, C and S has presented an argument against return based on the third exception. No argument was presented by any respondent in relation to the second exception. The consequence is that in light of my decision as to settlement I have no option but to make an order for the return of the child O. This decision may impact upon the further arguments advanced.

[38] All parties were agreed that I should approach the article 13 submissions by accepting that each of C and S had stated an objection to being returned to France and by accepting that each has reached an age and level of maturity at which it is appropriate to take account of their views. I should then consider what weight to give to the objection stated by an exercise of my discretion. A range of other considerations may also fall to be weighed in this exercise, but I do not require to be satisfied that the case is exceptional before being entitled to refuse to make an order for return.

[39] The starting point for these purposes is to establish what the objection to being returned is. C and S both like living in Dundee. They do not wish to have their lives disrupted. They do not wish to leave their friends and they do not want to have to make new friendships. They each express concerns about how they would cope in the French educational system. Neither C nor S wish to be separated from their father, nor from any of their other siblings. Each has also expressed criticisms of the way in which they were cared for by their mother before leaving France.

[40] In this exercise of discretion I ought of course to take account of the Convention policy. I ought to take account not just of the fact of objection but its nature and basis. I ought to take account of the views of each of C and S themselves and I can take account of the wider considerations of the rights and welfare of each. I ought also to bear in mind that the older the child is, the greater the weight that his or her objection is likely to carry. Of course, it is part and parcel of weighing certain of these aspects, that I require to come to a view as to the extent to which the complaints or objections are, to borrow Baroness Hale's phrase, authentically their own.

[41] In his submissions Mr Mitchell took me through the contents of productions 6/29 - 6/39. These comprise reports and letters prepared between November 2001 and November 2005 in the context of the litigation conducted in France. I have already commented upon the nature of that process. It is correct to note that throughout the history, as disclosed in this documentation, there is a theme of the first respondent complaining to those involved about the behaviour of the children's mother. It is equally clear that those concerned repeatedly reported that they saw no sign of any such conduct, that there was no other evidence to support the father's complaints, and in particular, that even when seen on their own, the children made no such claims.

[42] A reading of the reports prepared during the period from April 2002 until March 2005 discloses that all of those providing professional advice to the French Courts repeatedly commented upon the adverse nature of the first respondent's conduct and influence upon the children. He was noted as involving the children in the dispute between himself and his wife, as being manipulative and as seeking to turn the children against their mother. He was described as a man whose personal convictions were overwhelming, who refused to listen to anyone else's view but his own and who adversely affected and limited the way in which the children expressed themselves and thought. He was described as posing a danger to the children's welfare. By contrast, the same reports commented upon the realistic and considerate attitude adopted by the petitioner.

[43] This material accordingly provides me with a basis for exercising caution in assessing the criticisms of their mother's care which are now contained in the affidavits of C and S and which are supported by the affidavits of the first respondent himself, his own mother and the eldest boy M. It also provides me with independent information upon which to assess the question of the first respondent's influence over the children. The descriptions of the first respondent's attitude and personality cast light on the otherwise surprising fact that, throughout their absence of nearly two and a half years, there was no contact of any description between any of the children and their mother. This despite the passing of such obvious emotional triggers as birthdays and Christmas. I am satisfied, taking these factors together, that the first respondent has throughout exercised a degree of control and influence over each of the children as should cause me to doubt the extent to which the objections advanced are authentically those of the children concerned.

[44] I do of course recognise that return to France would result in upheaval for each of C and S. Although there is no expert evidence available to vouch their concerns about how they would cope with schooling, it is no more than common sense to acknowledge that difficulties will be present. On the other hand their mother speaks both French and English and will be able to assist. She has already discussed arrangements for their attendance at the schools concerned. Each of them of course attended school in France for nearly four years before being removed. The French reports describe each as latterly doing well at school and being involved in out of school activities. The report of the specialist teacher dated November 2004 notes that by then both had a good command of French and were very alert in communication. Both C and S are resilient children. That is obvious from the way they integrated and coped in Dundee. Despite commencing new schools in the middle of the school year and in an environment where they knew no one, the affidavits from their school teachers point out that each coped well. S in particular was described as having fully integrated very quickly. I have no reason to think that they will not be able to do so again. Not everything about France will be new to them. Their mother still lives in the same house in which they lived and has remained in contact with the parents of some children in the community with whom C and S were previously friendly.

[45] An aspect of the objection expressed by each child is also that they do not wish to be separated from their father, nor from any of their siblings. They also state that they do wish to see their mother. It is hardly surprising, given what they have been through, that they seek a period of stability. However, as already discussed, these are aspirations which cannot all be catered for. Their father is likely to be extradited, their sister O must be returned to France and it will be difficult to see much of their mother if they and she live in different countries. As I indicated in discussing the issue of settlement, there is a sense in which, when dealing with these issues in their affidavits, none of those concerned have faced up to reality. This must also affect my assessment of what weight to give to the objections stated, despite the age of C in particular. In this same vein I must take account of how an order for the return of the child O impacts upon the objections stated by C and S. The only person who appears to have discussed this to any extent with either child is the Scottish social worker Carol Macdonald, who produced reports on the present family circumstances. She notes in her report relating to C that she felt that if the little ones (S and O) were to be returned she would also have to return to ensure that they were alright. This is far from a full analysis of the competing options, but it is at least an indication of C's views. It is the only indication I have.

[46] In P v S Lord Bonomy commented that disruption to education and to the child's life in general were, sadly, almost unavoidable features of cases like these. There is certainly likely to be a level of such disruption in many cases in which the court grants an application for return. However, any such disruption has as its root cause the act of the abducting parent. In the present case I have taken account of the fact that each of C and S object to being returned for the reasons given. I have been particularly conscious of the age of C and the need to bear that fully in mind in assessing the weight to be attached to what she has to say. However, I have found that their father's influence is a strong factor in what both C and S say and I have taken account of that in deciding what weight to attach to the concerns expressed by each. In so far as they have objections which are authentically their own, I have sought to assess the strength and validity of those in light of the countervailing factors which I have identified and discussed. In the end I have come to the view that I ought not to give effect to the objections stated. Instead I ought to make an order for their return as sought by their mother. In taking this approach I do not see myself as causing the children concerned to suffer for the sake of general deterrence of the evil of child abduction. I have taken account of the policy of the Convention in considering the arguments advanced under this head, but only as one of a number of other factors. In any event, the facts of Re M, in which such a comment was made, are quite different from the facts of the case before me.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> C v. C [2008] ScotCS CSOH_42 (10 March 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_42.html Cite as: 2008 GWD 26-403, [2008] CSOH 42, [2008] ScotCS CSOH_42, 2008 Fam LR 28, 2008 SCLR 329

Scottish Court of Session Decisions