EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 19
Lady Paton Lord Drummond Young Lord Wheatley	P1139/13 OPINION OF THE COURT delivered by LADY PATON in the petition of JP petitioner and reclaimer; against FM respondent: _______________

petitioner and reclaimer: M Clark; Simpson & Marwick

respondent: Hayhow; Morisons

11 February 2014

Child abduction

[1] The petitioner was born on 29 April 1971. He is a Canadian citizen, and lives in British Columbia, Canada. He has served in the Canadian Forces. After being honourably discharged in 1997, he worked as a fitness trainer, a skilled labourer, and a furniture-maker.

[2] The respondent was born on 30 September 1974. She is Scottish, and a trained nurse. She currently lives with her mother near Dunoon, Scotland, with M (born on 18 November 2010), the parties' child.

[3] This petition is brought under the Hague Convention (the Convention on the Civil Aspects of International Child Abduction) all as set out in Schedule I to the Child Abduction and Custody Act 1985. The petitioner seeks the return of M to British Columbia in order that the courts there may determine questions such as residence and contact. The matter came before Lord Armstrong on 29 November 2013. After hearing submissions, the court made avizandum. On 3 December 2013 the Lord Ordinary delivered an oral judgment. He sustained the second plea-in-law for the respondent, which was in the following terms:

"2. A period of more than one year having elapsed from the date of the wrongful retention in October 2012, and the child having settled in her new environment, the prayer of the petition should be refused."

He therefore refused the prayer of the petition. On 9 December 2013 the Lord Ordinary issued a written Note which inter alia incorporated the oral judgment. The petitioner reclaimed.

[4] In the reclaiming motion, it is no longer disputed that M was wrongfully retained in Scotland as from October 2012. The issue in dispute is whether the Lord Ordinary erred in holding in terms of article 12 of Schedule I to the 1985 Act that M had been demonstrated to be so settled in her new environment that, in the exercise of the court's discretion, she should not be returned to British Columbia.

Brief history of events

[5] In 2007 the respondent was working as a nurse in Vancouver. In August 2007 she met the petitioner on-line. They entered into a relationship. They began living together in 2009. Their child M was born on 18 November 2010, and both parents were involved in caring for her. About 10 months after the birth, financial constraints resulted in the respondent returning to work as a nurse. The petitioner looked after M while the respondent was at work.

[6] The parties experienced difficulties with finances and accommodation. Their relationship suffered. The respondent visited her family in Scotland, but always returned to Canada. However in July 2012 the respondent learned that her mother was unwell. On 21 August 2012 she travelled to Scotland with M. As the petitioner explains in his affidavit:

"8. ... [The respondent] downloaded a form from the internet which I think was some kind of government travel document to indicate that I was consenting to M being taken out of the country ...

9. The date which I inserted in the travel document for the return was 1 March 2013. [The respondent] and I understood her mother was quite ill and that it could take quite a while for her mother to recover ..."

[7] The parties kept in communication by telephone, e-mail and Skype. In October 2012 the respondent terminated the lease of the parties' apartment in Vancouver (for which she had been paying the rent). The petitioner reacted badly. His parents advised the respondent by e-mail dated 26 October 2012 that they were worried about him and had been unable to contact him. Ultimately the petitioner went to live with his parents in their four-bedroomed house in Port Moody.

[8] The parties' affidavits differ about the date when the respondent advised the petitioner that she was definitely not returning to Canada. The Lord Ordinary found that their relationship effectively ended in October 2012, and that is not now disputed. Some time later, the petitioner obtained legal advice. In paragraph 18 of his affidavit, he explains that on 2 July 2013 he e-mailed the British Columbia central authority requesting that they send him an application form for M's return. Matters were put in hand, and the present proceedings commenced in Scotland on 7 November 2013.

Article 12 of the Hague Convention

[9] Article 12 of the Hague Convention provides inter alia:

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

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 ..."

The Lord Ordinary's oral ruling on 3 December 2012

[10] The Lord Ordinary's ruling on 3 December 2012 was as follows:

"[1] This case concerns the issue of whether it is appropriate that the child [M] should be returned to her father, the petitioner, in Canada from where she was taken by her mother, the respondent, to Scotland. The matter is governed by the Child Abduction and Custody Act 1985 and by the Hague Convention on the Civil Aspects of International Child Abduction, to which both the UK and Canada are contracting states. I am grateful to counsel for their clear and focused submissions both in writing, and at the bar.

[2] No issue arises in relation to the exercise of Article 3 rights. The parties are agreed that immediately prior to [M's] wrongful retention, the petitioner was exercising such rights.

[3] The first issue which I must consider, in order to determine whether or not, for the purposes of Article 12 of the convention, the period of wrongful retention extended to more or less than one year, is when it can be said that the parties' relationship had ended. It was accepted that the commencement of wrongful retention began from that point. In that regard, I was referred to certain affidavit evidence, in relation to which I note the guidance set out in the case of D v D 2002 SC 33 and the need for extraneous evidence if conclusions are to be reached in considering affidavits which provide conflicting assertions of fact. With that in mind, I am persuaded by the submission for the respondent that consistency of a stated position, depending on its nature and extent, can constitute sufficient support to allow a distinction to be made between competing accounts and to allow a preference to be made. On that basis, having regard to the careful analysis of the email traffic between the parties, and between the respondent and others, to which I was referred, I prefer the respondent's position to the effect that the relationship effectively ended, in the sense that on an objective assessment of the language used by both parties, each was aware of that fact, in October 2012. That being so, accepting the approach of the parties to the exercise of Article 3 rights, I find that the wrongful retention did subsist for more than one year before the date of the raising of these proceedings.

[4] As to whether, for the purposes of Article 12, the respondent has demonstrated that [M] has established a settled life in Scotland, the question, as set out in Soucie v Soucie 1995 SC 134, is not just one of a balancing exercise between the requirements of the convention, on the one hand, and the interests of the child, on the other, but is one, (subject to the qualification expressed by Baroness Hale in the case of In Re M (Abduction: Rights of Custody) [2008] 1 AC 1288, at paragraph 47) where it clearly has to be shown that settlement in the new environment is so well established that it overrides the otherwise clear duty of the court to order the return of the child. I also recognise that the assessment of being settled must involve consideration of the physical element of being established in a community and environment, and an emotional constituent denoting security and stability, and that, in assessing the new environment, regard must be had to it encompassing place, home, school, people, friends, activities and opportunities

[5] In this case, insofar as the physical constituent of settlement is concerned, I was directed to evidence that [M] has been effectively based, in her home life [near Dunoon], but for some short breaks, since August 2012, that she has been attending a local nursery since January [2013], that she has been attending a Gaelic-based toddlers group since before that, and that she has been participating in other community based activities. Insofar as the emotional constituent is concerned, it was submitted that the evidence disclosed that, of her short life of just over 3 years, she had spent the majority of the developmental stage during which she would be expected to begin to form wider personal relationships, in her new environment, since leaving Canada. She has made friends at her playgroup and regularly sees her cousins, aunts and uncles and other extended family. She has a close relationship with her grandmother and the respondent's brother and sister. She has around her a strong support network. She has integrated into the community to an extent which provided security and stability which was more than could be derived only from her relationship with her mother. As regards future opportunity afforded by her new environment, the evidence indicated that she is enrolled in a pre-school funded place at a local nursery from January 2014, and given that the respondent is the principal carer of [M's] grandmother, she, [M], is likely to continue to remain based [near Dunoon] for the foreseeable future.

[6] Notwithstanding the comments made in Soucie at page 139G, concerning a child of similar age, I must judge this case on its own facts and circumstances. In doing so, I have come to the view, assessing the case in that way and having taken full account of all of the evidence before me, that it has been sufficiently demonstrated by the respondent that [M] is now settled in her new environment.

[7] That being so, I have a discretion in the matter of whether [M] should be returned to Canada. In that regard, I recognise that the grounds for a refusal to return are narrow and that a balancing exercise requires to be carried out as to whether the aims and purposes of the convention are outweighed by other relevant considerations. In that context, consistent with the comments made by Baroness Hale in the case of In Re M, in any consideration of the exercise of that discretion, [M's] welfare is a relevant and significant factor. It does appear to me that [M] is well provided for in her new environment and is thriving. On my assessment of the evidence, I consider that it is likely that her return to Canada would upset that stability. Taking into account the doubts which surround the questions of the petitioner's ability to offer financial support and [M's] likely separation from her mother in circumstances where, as a result of her parents being in conflict in the aftermath of their relationship, it would not be appropriate for the respondent to live with the petitioner and [M] under his parents' roof, I consider that, in contrast to the current situation, it is more likely that provision for her in Canada would not serve her interests to the same degree as that which is available in her new environment. In all of these circumstances, I take the view that [M's] welfare is more likely to be best served by a refusal to return her to Canada than by an order requiring her return.

[8] On behalf of the respondent it was also submitted, in terms of Article 13(b) that there was a grave risk that [M's] return to Canada would place her in an intolerable situation. For that exception to be made out I accept that what is intolerable in relation to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate' (In re (Children) (Abduction: Custody Appeal) [2012] 1 AC 144). In this case, the circumstances set out in this context were, as I understand it, the uncertainties, given the parties' particular circumstances and in the absence of undertakings by the petitioner, which the respondent would face in Canada, in relation to accommodation and financial support, all of which it was said would impact on [M] so as to render her exposed to an intolerable situation. Given my decision in relation to settlement and the manner in which I have thereafter exercised my discretion, my decision on this point is of lesser significance. On balance, however, on the evidence in this case and with some hesitation, I find that this exception is not made out. While the consequences of a return in my view, on these facts, might well be certainly less than ideal and possibly undesirable, I cannot say, giving the word its appropriate meaning, and albeit in an imperfect world, that [M's] situation in such circumstances would thereby be rendered intolerable.

[9] In the result, I shall refuse the prayer of the petition, sustain the respondent's second plea-in-law and repel her first and third pleas-in-law."

Submissions for the petitioner and reclaimer

[11] Counsel for the petitioner emphasised that the proceedings had been raised only a few weeks outside the period of one year referred to in article 12 of the Convention. Had proceedings had been raised three weeks earlier, the court would have had no discretion to refuse to return the child to British Columbia. The petitioner had hoped for the respondent's return in March 2013 (the date entered on the travel document). He had resorted to official proceedings only once that date had passed.

[12] The wrong approach: Counsel submitted that the Lord Ordinary erred in law in that he had considered a decision regulating the child's residence, rather than a decision whether the child ought to be returned to the country of her habitual residence to enable the courts there to make decisions about the child's care. As a result of that error, he had balanced and compared the qualities of life of the child on being transferred to Canada as against her current life in Scotland: but that was not the correct approach.

[13] No settlement: The onus of proving settlement lay on the respondent (Soucie v Soucie 1995 SC 134 at page 138B-C; In re M (Abduction: Rights of Custody) [2008] 1 AC 1288 at page 1304C-D). Factors relevant in assessing settlement were set out by Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413 at page 417H to 418D. The degree of settlement had to be considerable to overcome the primary purpose of the Convention (Soucie, at page 139C-D; P v S (2002) Fam LR 2 paragraphs 1-107 to 1-115; NJC v NPC 2008 SC 571 at paragraph [45]; J v K 2002 SC 450 paragraphs [51]-[53]; KL (a child) [2013] UKSC 75, a decision of the Supreme Court issued after the Lord Ordinary's interlocutor of 3 December 2013). Also as this was a case on the borderline of discretion, the evidence about settlement had to be good (Perrin v Perrin 1994 SC 45 at page 51F-G). The evidence in the present case did not satisfy the necessary standard.

[14] Error in discretion: It was accepted that there was a high threshold for successful review of the exercise of a court's discretion. Nevertheless standing the initial misdirection in law (paragraph [12] above), there had been a failure to take into account relevant considerations and to leave out of account irrelevant considerations. Accordingly the exercise of discretion should be reviewed.

[15] Conclusion: The reclaiming motion should be allowed, the interlocutor of 3 December 2013 recalled, and the prayer of the petition granted ordaining the child M to be returned to British Columbia.

Submissions for the respondent

[16] Counsel for the respondent submitted that the Lord Ordinary had been referred to all the relevant authorities, as recorded in his written Note dated 9 December 2013. He would therefore have the purpose of the Hague Convention clearly in mind when analysing the evidence and submissions.

[17] Overall approach: In relation to the criticism made of the opening sentence in paragraph [1] of the oral judgment, when that judgment and the written Note were read as a whole, it could be seen that the criticism was unfounded. After the first sentence, the Lord Ordinary immediately referred to the 1985 Act, the Hague Convention, and counsel's submissions (which had focused on the question of the return of the child to the courts of her habitual residence). In paragraphs [3] and [4] he referred to article 12 of the Convention, and showed that he clearly understood the function of that article. He had been referred to authorities such as In re M, Soucie, and Perrin, and obviously had regard to them. On a proper construction of the oral judgment and the Note written some 6 days later, it was plain that the Lord Ordinary knew that he was dealing with the question of the return of the child to the jurisdiction of British Columbia.

[18] Settlement: The cases of P v S and NJC v JPC involved concealment and deception, and vouched the proposition that there was a particularly high burden of proving settlement in such circumstances. But there had been no concealment or deception in the present case, so that high burden did not apply. The authority KL (a child) was distinguishable not only on its facts, but in law, as that case had been decided under the Family Law Act 1986, not the Hague Convention. Perrin demonstrated that a lengthy period of residence in a new country would cause the court to look more favourably on the question of settlement. The Lord Ordinary clearly appreciated that he was bound by the law set out in Soucie, but he was correct to consider this case on its own particular facts. The relevant facts in this case were set out in paragraph [5] of the oral judgment. As was vouched by affidavits - for example, from the respondent, her sister GM, her friend AC, and from CY (a local authority employee working with various community groups) - those facts included being based in her grandmother's home near Dunoon since August 2012, attending nursery and a Gaelic-based toddlers group, participating in community activities, and beginning to form wider personal relationships (friends at her playgroup, close relationships with her grandmother, cousins, aunts and uncles) resulting in a strong support network and integration into the community, including enrolment in a pre-school funded place and the likelihood of remaining in that environment in the future. Holidays to Spain and Brussels had not interrupted the settled circumstances. The majority of M's developmental life (when she would be expected to form wider personal relationships) had been spent in Scotland: cf paragraph [45] of IGR petitioner [2011] CSOH 208. Thus Soucie could be distinguished on its facts, as there were more reasons in the present case for favouring the status quo. Indeed the Lord Ordinary noted that M had spent "the majority of the developmental stage during which she would be expected to begin to form wider personal relationships in the new environment" in Scotland.

[19] Discretion: In re M (Abduction: Rights of Custody) 2008 1 AC 1288 was the leading case on the exercise of discretion. In the circumstances, the policy of the Convention should not be given undue weight (paragraphs 43-47). The Lord Ordinary had applied himself correctly to the law and to the issues in question, including the welfare of the child. As was clear from paragraph 19 of the petitioner's affidavit dated 7 November 2013, he was looking for appropriate accommodation for himself and M: thus the Lord Ordinary was entitled to consider the possibility of the separation of mother and child and to treat that as a welfare issue. The Lord Ordinary had not erred in the exercise of his discretion.

[20] Conclusion: The reclaiming motion should be refused. However if the court decided against the respondent, the case should be put out for a By Order hearing to allow discussion about arrangements, timing, and ongoing care of M by her mother.

Discussion

[21] At the outset we acknowledge the difficulties presented by petitions for child abduction. The future of a young child torn between two countries is an urgent matter demanding a prompt response from the courts, yet the factual background and legal principles involved may be complex and subtle.

[22] That said, we are unable to overlook the clearly expressed encapsulation of the issue said to be in dispute, appearing as it does in the first sentence of paragraph [1] of the oral judgment of the Lord Ordinary in the following terms:

"[1] This case concerns the issue of whether it is appropriate that the child [M] should be returned to her father, the petitioner, in Canada from where she was taken by her mother, the respondent, to Scotland ..."

[23] In our opinion, that sentence does not accurately reflect the issue. The purpose of the Hague Convention is to return a child to the country of his or her habitual residence in order that the courts in that jurisdiction may make decisions concerning residence, contact and other matters. It is by no mean a foregone conclusion that the child, on returning to that jurisdiction, will necessarily live with the other parent, even on a temporary basis while the courts consider matters. Pending the ruling of the courts, no transfer to the other parent would necessarily occur. Indeed even after the courts' ruling, the child may well remain with the de facto carer parent.

[24] It was submitted to us that the oral judgment of 3 December 2013 should be read as a whole, and further, that the written Note of 9 December 2013 (incorporating the oral judgment) should be included in that exercise. As paragraph [1] of the oral judgment contained references to the Hague Convention, and the written Note recorded in paragraph [1] that:

" ... the petitioner seeks the return of [M] to the jurisdiction of the courts of British Columbia"

and also recorded the authorities cited by counsel at the hearing in the Outer House, it was clear that the Lord Ordinary was engaged in applying the terms of the Convention, and was not making a decision regulating M's residence.

[25] We are unable to accept that submission. The oral judgment records the approach being adopted at the time when the decision-making process was taking place. In terms of the opening sentence, the question being addressed was in effect whether it would be appropriate to uproot a 3-year-old girl living with her mother in Scotland in order to return her to her father in Canada. We cannot be confident that this approach did not influence the Lord Ordinary's assessment of the question of settlement and the exercise of discretion. For example, in paragraph [7] of the oral judgment, it is noted that:

"Taking into account the doubts which surround the questions of the petitioner's ability to offer financial support and M's likely separation from her mother in circumstances where, as a result of her parents being in conflict in the aftermath of their relationship, it would not be appropriate for the respondent to live with the petitioner and M under his parents' roof, I consider that, in contrast to the current situation, it is more likely that provision for her in Canada would not serve her interests to the same degree as that which is available in her new environment."

[26] That reasoning is, in our view, appropriate to an assessment of the best interests of the child in the context of residence, contact, alimentary provision, and other similar matters: but these are issues to be assessed by the courts of the appropriate jurisdiction following upon a decision (applying the Hague Convention) as to whether or not the child should be returned to the jurisdiction of her habitual residence to enable the courts of that jurisdiction to carry out the necessary assessment and determination. In the result therefore we are unable confidently to reject the submission made to us that the decision issued on 3 December 2013 proceeded on the wrong basis. For that reason, we have concluded that the interlocutor of 3 December must be recalled, and questions of settlement and discretion are then at large for this court.

Settlement

[27] The respondent's affidavit dated 15 November 2013 and her note of argument describe M's circumstances. M came to Scotland with the respondent in August 2012. M and the respondent live with M's grandmother in her house near Dunoon. At Christmas 2012 M went with the respondent to Brussels for a family holiday for 2 weeks. In May 2013 the respondent started working part-time as a nurse. In August 2013 M went with the respondent to Spain for a family holiday. In October 2013 M's grandmother had a liver transplant (at which time M and the respondent lived in temporary accommodation in Glasgow for 3 weeks, in order to be near the hospital). M attends a nursery twice a week, and a Gaelic toddlers group once a week. She has a close relationship with the respondent, and with her grandmother. Her uncle lives in England, and her aunt in Brussels, but she manages to maintain a relationship with them. M has several close friends in the Dunoon area, whom she has met through the parent and toddlers group. There is an excellent sense of community in Dunoon, and many community-based activities are available. M is described as having a good and strong support network, an active social life, and a particular best friend L.

Affidavits from inter alios the respondent's sister GM, mother CM, friends ALC and LJA, a parent from the toddler group CB, and a local authority employee CY, confirm much of the above.

[28] A letter dated 17 November 2013 from the nursery manager of the family centre confirms that M has settled well at the nursery and is happy and secure in the environment. She has bonded with staff members and enjoys playing with the other children, particularly L. M became entitled to a pre-school funded place at a family centre from January 2014 onwards (and counsel confirmed that M was in fact attending there).

[29] An e-mail dated 17 November 2013 from the play leader of the parent and toddler group describes M as "a very happy, sociable and polite little girl" who is participating well and appears to have a flair for languages.

[30] As was said by the Inner House in Soucie v Soucie 1995 SC 134 at page 139:

" ... we consider that the proper question is whether the child is so settled in her new environment that the court would be justified in disregarding an otherwise mandatory requirement to have the child returned. This is another way of saying 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 ... what must be clearly shown is that the settlement in a new environment is so well established that it overrides the otherwise clear duty of the court to order the return of the child. In our opinion the respondent has failed to demonstrate that such a settlement has been established. The facts founded on by the respondent are such as might be expected to be found in any case of a young child living with its mother. Because of the age of the child [3 years old in Soucie] it is unlikely that the child can properly be said to be established in a community involving such matters as school, people, friends, activities and opportunities, to use the words of Bracewell J. As far as the emotional constituent denoting security and stability is concerned, the overwhelming security and stability which is provided for the child will be provided by the presence of her mother. It is clear from the facts of this case that if an order is made for the return of the child the mother will go with the child and accordingly that emotional security and stability can be maintained ..."

[31] It seems to us, in this case also, that the facts found are such as might be expected in any case of a 3-year-old child living with her mother. While physical environment, toddlers group and nursery school, activities, holidays, friends and relatives, are obviously all important to M, what is crucial to her wellbeing at present is the continuing care, emotional support and security, and general stability provided by her mother the respondent. If an order were to be made for the return of M to the jurisdiction of British Columbia, we are satisfied that the respondent would accompany her. Accordingly the emotional security and stability which the respondent provides would be maintained. In these circumstances, we are not persuaded that M is at an age or stage in her life, or her circumstances are such, that the settlement provision in article 12 of the Hague Convention has been made out such that the primary purpose of the Convention is outweighed.

Discretion

[32] That is sufficient for a determination of this reclaiming motion. However it may be helpful to record our views concerning the exercise of the court's discretion. Had settlement been established, this court would have a discretion whether or not to order the return of the child. As was pointed out in Soucie v Soucie at page 139E-F:

"Even in discretionary cases it has been said that it is for the court to conduct the necessary balancing exercise between what would otherwise be required by the Convention and the interests of the children, but only where it can clearly be shown that the interests of the children require it, should the court refuse to order their return. See Re A (Minors) (No 2) ..."

[33] In this particular case, the 12-month period referred to in article 12 of the Convention had only just expired. Accordingly it is a case which narrowly missed being one of mandatory return: cf Perrin v Perrin 1994 SC 45 at page 52A ("a case which is on the very borderline of discretionary rather than mandatory return to the place of habitual residence"). Against that background, taking into account the purpose of the Hague Convention, M's young age, all the circumstances of her wrongful retention, her present circumstances in Scotland, and the fact that any return to British Columbia accompanied by the respondent would be for the purpose of having decisions about M's welfare made in her best interests by the courts there, we would have exercised our discretion in favour of the petitioner by ordering the return of M to British Columbia.

Decision

[34] For the reasons given above, we shall recall the interlocutor of the Lord Ordinary dated 3 December 2013, grant the prayer of the petition, and in terms thereof order the respondent to return the child M to the jurisdiction of British Columbia. However before granting the interlocutor, we shall, as requested by counsel, put the case out for a hearing By Order in order to discuss time-tabling and ancillary matters. We shall also continue the question of expenses to enable parties to address us on that matter.