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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 18

P1000/16

 

Lady Paton

Lord Drummond Young

Lord Glennie

OPINION OF THE COURT

delivered by LADY PATON

in the cause

CM

Petitioner and Respondent

against

ER (AP)

Respondent and Reclaimer

Petitioner and Respondent (father):  Ennis;  Brodies LLP

Respondent and Reclaimer (mother):  Dowdalls QC, CA MacLeod;  TC Young Wilson Terris

24 February 2017

Child abduction
[1]        The petitioner was born on 31 January 1982.  He is an Australian national, and lives in Brisbane, Australia.  He is a wholesale car trader.  The respondent was born on 2 May 1986.  She is Scottish, and has dual nationality (British and Australian).  She currently lives with her parents in Bonnyrigg, Scotland, with the parties’ child AM aged one, born in Australia on 7 November 2015.

[2]        This petition is brought under the Hague Convention (the Convention on the Civil Aspects of International Child Abduction) as set out in schedule 1 to the Child Abduction and Custody Act 1985.  The petitioner seeks the return of AM to Australia in order that the courts there may determine questions such as residence and contact.  The matter came before Lord Brailsford on 23 November 2016.  After hearing submissions, the Lord Ordinary delivered an oral judgment on 24 November 2016, and ordered the return of the child to Australia within six weeks of that date.  The judgment was recorded and subsequently made available in the form of a Note.  The respondent reclaimed.

[3]        In this reclaiming motion, the disputed issues include the child’s habitual residence;  whether the petitioner consented to the child living in Scotland for an indefinite period;  and whether and, if so, when the respondent wrongfully retained the child in Scotland.

 

Brief history of events
[4]        In 2010 the respondent moved to Australia.  On 14 August 2014, her UK passport expired.  On 26 January 2015, she became an Australian citizen with an Australian passport. 

 

Family life
[5]        The parties met in 2015.  The respondent became pregnant.  They lived together in Queensland, Australia. When the child AM was born, they lived together in family.  As the Lord Ordinary states at paragraph [2] of his Note dated 24 November 2016:

“In these circumstances it is clear, and was not disputed by the respondent, that the child was habitually resident in Australia with [his] parents in that country at birth.  It is also clear that the petitioner enjoyed a custodial right as a matter of Australian law, and that this right included shared decision making in regard to decisions involving what would generally be regarded as the welfare of the child”.

 

The respondent’s trip to Scotland in May 2016
[6]        The parties’ relationship became troubled.  On 16 May 2016, the respondent and the child AM travelled to Scotland on a return air ticket (return date 8 August 2016).  On the basis of the affidavits, productions and submissions before him, the Lord Ordinary concluded that:

“[2] Notwithstanding [the troubled relationship], the evidence was that the petitioner understood that the respondent was returning to Scotland for a visit, returning to Australia on 8 August, and would use the trip to think about the future of the relationship … [4] … the respondent left Australia within the knowledge of the petitioner and also with his agreement but the nature of that agreement is critical.  In my view the nature of that agreement was that the respondent was going to Scotland for a break and would return after a period of three months … [6] The available evidence is, in my view, that on the balance of probabilities the state of the petitioner’s knowledge was that the respondent would return with the child after a period of three months.”

 

[7]        On arrival in Scotland, the respondent lived with her parents in Bonnyrigg.  In her affidavit dated 3 November 2016, the respondent describes the difficulties in the relationship and in paragraph 37 et seq explains:

“ 37 … I was just desperate to be home.  I wanted to have family and friends around me.  I have always known that I wanted to be in Scotland but for such a long time I had been longing for it … From the moment I arrived on 16 May 2016 I was thinking about how I was going to tell [the petitioner] I wasn’t going to come back …

38  Once I was home, I felt even more certain that I just could not go back to Australia.  My home is in Scotland and I want to be here with AM …”

 

[8]        On 20 June 2016 the respondent was in communication with the petitioner by Facetime on her i-phone.  She advised the petitioner that she was not coming back to Australia.  The conversation came to an abrupt end, and the petitioner immediately sent the respondent an email (dated 22 June 2016 as a result of time differences) stating inter alia:

“ … Please forgive our differences … I have been very emotional and angry about your intentions to keep our son in Scotland.  I am asking you please come back to Australia with … our son.  Please let us resolve any issues or differences we have here.

Please come home as we agreed on August 8th …”

 

 

The steps taken by the respondent in Scotland
[9]        In an agreed chronology prepared for this reclaiming motion, it is noted that the respondent took the following steps after her arrival in Scotland on 16 May 2016.

Prior to 20 June 2016:

  • May-June 2016:staying with family in the respondent’s family home;visiting family and friends in Scotland.
  • 20 May 2016:cancelling Australian benefits.
  • 27 May 2016:obtaining a quote for the freighting of her own and the child’s belongings from Australia to Scotland.
  • 14 June 2016:registering herself and the child with a dentist in Scotland.
  • 20 June 2016:registering herself and the child with a doctor and health visitor in Bonnyrigg, Scotland.

After 20 June 2016:

  • 21 June 2016:closing her Australian bank accounts; contacting the Australian police about her sports gun;enquiring about benefits at a Scottish Job Centre.
  • 22 June 2016:contacting Women’s Aid in Scotland.
  • 25-29 June 2016:being put in touch with, and instructing, Scottish solicitors.
  • 27 July 2016:registering the child with a children’s learning service.
  • 1 August 2016:registering with Link Housing.
  • 2 August 2016:enrolling the child in local swimming classes beginning on 25 August 2016.
  • 8 August 2016:registering herself and the child with Lasswade Library.

[10]      After 8 August 2016 the respondent received UK child tax credit, UK child benefit (payable to the respondent), and new UK passports for herself and the child.

 

The proceedings seeking the child’s return
[11]      Meantime in Australia, the petitioner sought advice.  On 31 August 2016 he completed an application seeking the initiation of proceedings for the return of the child to Australia.  He provided inter alia a supporting affidavit.

[12]      On 13 October 2016, the petition seeking return of the child was served on the respondent.

[13]      A first hearing in the Court of Session took place on 20 October 2016, with a  second hearing on 23 November 2016 resulting in the Lord Ordinary’s interlocutor of 24 November 2016.  The reclaiming motion was heard on 26 January 2017.

 

Submissions

Respondent and reclaimer (mother)
[14]      Senior counsel invited the court to recall the Lord Ordinary’s interlocutor of 24 November 2016, and to dismiss the petition.

[15]      It was accepted that the petitioner had custody rights which continued after the child left Australia.  However it was submitted that the child had acquired habitual residence in Scotland immediately prior to 8 August 2016 (that being the key date, not 20 June 2016 as contended by the petitioner).  He had accordingly lost his habitual residence in Australia.  Thus the Hague Convention did not apply.  Esto the convention was engaged, the petitioner had given his unqualified consent to the child’s indefinite stay in Scotland. 

[16]      Senior counsel referred to Articles 3 to 5, and 12 to 15 of the Convention, and to In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70 at page 76; A v A (Children: Habitual Residence) [2014] AC 1 (UKSC), paragraph 54;  AR v RN 2015 SC (UKSC) 129, paragraphs [10] to [18];  and In re B (A Child) [2016] AC 606 (UKSC), paragraphs 45 to 47, and 57.  Habitual residence was a question of fact.  There was no particular time requirement.  There was no need to demonstrate an intention to live in the country permanently or indefinitely.  There was no rule that a parent could not unilaterally change a child’s habitual residence.  What was required was an assessment of the integration of the child and his parent in the country concerned.  A very young child’s social and family environment was often derived from those upon whom he was dependent. If the court’s analysis of the facts concluded that there was sufficient social and family integration in Scotland, it was irrelevant that it had all happened over a short period.

[17]      While the Lord Ordinary’s summary of relevant legal principles was not criticised, it was submitted that he had erred in his application of the law.  He had failed to identify the facts upon which he had relied, and to give adequate reasons for his decision.  In particular he had not specified the date of wrongful retention (8 August 2016).  He had regarded the nature of the parties’ agreement about the child’s visit to Scotland as “critical”, thus wrongly elevating that factor to a decisive status, whereas it was just one factor amongst many (AR v RN).  While the Lord Ordinary noted that many of the respondent’s steps towards integration in Scotland had been taken after obtaining legal advice, he did not in terms state that their purpose had been to evade the Convention:  nevertheless he apparently gave them little weight, and thus had failed properly to assess the child’s social and family integration in Scotland.  He had also erred in stating that the question of consent was not relevant and that he did not have to consider the respondent’s submission about consent.  In the result the matter was at large for the appeal court, which was more able to interfere as no oral evidence had been heard.

[18]      Senior counsel referred to passages in the affidavits and productions relevant to the issues of retention;  habitual residence;  and the nature of the visit to Scotland. 

 

Petitioner and respondent (father)

[19]      Counsel for the petitioner submitted that the Lord Ordinary had not erred.  But if any error of law had occurred, this court should consider matters de novo and, on the basis of the evidence available, reach the same conclusion as the Lord Ordinary. 

[20]      Matters to be borne in mind included the fact that the child was born in Australia on 7 November 2015;  he had a half-sister L aged 5 (the petitioner’s daughter) who lived in Australia;  his father the petitioner was an Australian;  his mother the respondent was an Australian citizen, having moved to Australia in 2010 and become an Australian citizen in January 2015, at a time when her UK passport had expired;  his grandparents lived in both Scotland and Australia, but his uncles and aunts (i.e. the parties’ siblings – the petitioner’s brother and half-sister, and the respondent’s brother) lived in Australia.  When the respondent was pregnant, she travelled to the UK for a visit using her Australian passport;  and when travelling with the child on 16 May 2016, both she and the child used Australian passports.

[21]      On the evidence, it was not accepted that the child had, as a matter of fact, integrated into Scottish life to such an extent that he had lost his habitual residence in Australia.  The appropriate date of retention was 20 June 2016, when the respondent’s unilateral announcement by telephone contravened the petitioner’s right to be consulted and to share in any decision about where the child should live (cf In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, Wall J at pages 79C-E, and 81E-H;  and Lord Hughes at paragraph 78 of A v A (Children: Habitual Residence) [2014] AC 1).  On that basis the period of time and events from 16 May 2016 to 20 June 2016 were patently insufficient, as a matter of fact, for the child to become so integrated in Scottish life that he would lose his habitual residence in Australia.  The steps taken up to 20 June 2016 focused on the respondent, and in any event did not go beyond what one could expect of the social interaction of a 6-month baby on a 3-month holiday (visiting grandparents, neighbours etc).  The three pointers set out in paragraph 46 of In re B (A Child) [2016] AC 606 did not alter matters in the present case.  Accordingly the court had no discretion, and must return the child to Australia.

[22]      Esto the date of retention was 8 August 2016, the child remained, on the facts, habitually resident in Australia.  There was no rule of law that a young child necessarily derived his habitual residence from his carer parent (In re B (A Child) [2016] AC 606, at paragraphs 30 and 31;  A v A (Children: Habitual Residence) [2014] AC 1, paragraph 82) although the carer parent’s circumstances were obviously an important factor to be taken into account.  The child was so young that enrolment (for example, for the library, early learning support, and swimming) carried little weight. Receipt of the child’s UK passport and child benefit occurred after 8 August 2016. In all the circumstances the Lord Ordinary was entitled, applying the correct legal principles outlined in paragraph [3] of his opinion, to find as a matter of fact that the child remained habitually resident in the Australian jurisdiction.  The Lord Ordinary could not be said to have reached that view on wrong facts, or by taking into account irrelevant facts. 

[23]      Finally if the Convention was engaged, the nature of the petitioner’s consent to the trip to Scotland was important.  The Lord Ordinary concluded on the evidence that the petitioner had agreed to the respondent’s having a 3-month holiday in Scotland with AM, returning to Australia on 8 August 2016.  Counsel submitted that the Lord Ordinary had been entitled to reach that conclusion, and referred inter alia to the petitioner’s affidavit;  the return ticket;  affidavits from the respondent’s friends in Australia;  and an email from the respondent herself dated 18 June 2016 referring to her being “in Scotland on holiday visiting family”.  If however the Lord Ordinary had erred and the finding should have been one of consent to an open-ended stay in Scotland, the court’s discretion should be exercised by confirming the order returning the child to Australia (Article 13 of the Convention).

[24]      If the court adhered to the Lord Ordinary’s interlocutor, the case should be put out for a hearing By Order to allow discussion of the practicalities of the child’s return to Australia.

 

Discussion

The Hague Convention

[25]      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. The courts will take all the circumstances into account, and make decisions in the best interests of the child,

[26]      In the present case, disputed issues include the child’s habitual residence (which was, at his birth on 7 November 2015, in Australia);  whether, and if so when, the child was wrongfully retained in Scotland; and whether consent was given by the petitioner to the child’s remaining in Scotland for an indefinite time.

 

The child’s habitual residence

[27]      Habitual residence is a question of fact, to be determined on a consideration of all the circumstances of the case (A v A (Children: Habitual Residence) [2014] AC 1, Lady Hale at paragraph 54;  AR v RN 2015 SC (UKSC) 129, Lord Reed at paragraphs 10 to 18;  In re B (A Child) [2016] AC 606, Lord Wilson at paragraphs 45 to 46).  No one factor is necessarily determinative.  There are no prescriptive rules concerning, for example, the attitude of a parent, or the length of time spent by the child in the new environment.  If the judge at first instance has applied the correct legal principles to the facts found proved, the conclusion ultimately reached is not generally open to challenge unless it can be shown to be a conclusion not reasonably open to the court (AR v RN paragraph [18]).

[28]      The context in the present case, as evidenced by the affidavits and productions available to the Lord Ordinary, was that of a young couple living in family together in Queensland,  Australia, with their baby aged under one year.  They each had custodial rights, including shared decision-making on matters regarding the welfare of the child.  They were each exercising those custodial rights in Australia.  The respondent (born in Scotland on 2 May 1986 and presently aged 30), although Scottish by birth, had lived in Australia since 2010.  She had allowed her UK passport to expire on 14 August 2014, and on 26 January 2015 acquired Australian citizenship.  She has an Australian passport, which she used to travel to Scotland in 2016.  Her one sibling, a brother, lives in Australia.  There have been visits between Scotland and Australia (for example, her visit to see her parents in Scotland when expecting her baby, and their visit to Australia when the baby was born).  As evidenced by their affidavits, the respondent’s friends in both Australia and Scotland generally regarded her as settled in Australia.  The child AM was born in Australia and has an Australian passport.  The petitioner for his part was born in Australia on 31 January 1982.  He is presently aged 35.  He is an Australian citizen and has lived in Australia all his life.  His family, friends, employment, interests and recreational pursuits are in Australia.  His siblings (a brother and half-sister) live in Australia.  His child by a previous relationship, L aged 5, lives in Australia. 

[29]      Against that background, the Lord Ordinary records at paragraph [2] of his Note:

“ … it is clear, and was not disputed by the respondent, that the child was habitually resident in Australia with [his] parents in that country at birth.”

 

[30]      As noted earlier, the parties’ relationship became troubled.  The Lord Ordinary found as fact that –

“Notwithstanding [their troubled relationship], the evidence was that the petitioner understood that the respondent was returning to Scotland for a visit, returning to Australia on 8 August, and would use the trip to think about the future of the relationship”.

 

The respondent herself, when sending a travel consultant an email dated 18 June 2016, explained:

“ … I am currently in Scotland on holiday visiting family and I have a dog in Brisbane.  However, I do not intend on returning to Australia due to personal reasons …” 

 

[31]      It was in this context, as evidenced by the affidavits and productions, that the Lord Ordinary reached the conclusion of fact in paragraph [12] of his Note, namely that, as at the date of his ruling on 24 November 2016,

“ … the child has not acquired a habitual residence in Scotland and remains habitually resident in the Australian jurisdiction.”

 

[32]      The respondent’s contention is that the Lord Ordinary had erred in treating the petitioner’s understanding concerning a 3-month holiday as “critical”.  By so doing, he is said to have given that factor unjustified weight and to have treated it as determinative, contrary to the guidance in AR v RN.  Furthermore, the proper date for assessing the child’s habitual residence was 8 August 2016, not 20 June 2016.  On the basis of the 8 August date, it was submitted that the evidence demonstrated that the child had integrated with social and family life in Scotland to such an extent that he had lost his Australian habitual residence and acquired a Scottish one.

[33]      In our opinion, the Lord Ordinary’s Note, properly construed and read as a whole, shows that he considered the petitioner’s understanding of the nature of the trip to Scotland as one of many factors to be taken into account in the present case.  He gave that factor considerable weight, which is not surprising as it featured in several areas of dispute, for example in the question of habitual residence, and in the question of consent.  But reading his Note as a whole, we do not accept that the Lord Ordinary treated the petitioner’s understanding as determinative of the issues he had to decide. 

[34]      As for the possible dates of 20 June and 8 August 2016, we accept that the Lord Ordinary did not specify which date he relied upon.  However in the particular circumstances of this case, that is of little moment.  On the basis of the 8 August date, we are not persuaded that the various steps outlined in paragraph [9] above are sufficient to demonstrate that the Lord Ordinary erred in concluding that the child had not lost his habitual residence in Australia.  The time-period was short, just under three months.  The child was very young, aged 8 to 10 months.  Many of the steps taken by the respondent concerned her own life and her personal circumstances.  In the context of a child’s habitual residence, we do not accept that a very young child’s habitual residence is inevitably dependent upon his carer parent’s circumstances, although such circumstances will be shared with the child (AR v RN) and will be of considerable importance.  As for any steps taken prior to 8 August 2016 and relating to the child alone, these steps seem to us equally attributable to steps which might be taken for the care and wellbeing of a child away from home on a long holiday, and in our opinion did not bring about such an integration in Scottish life that the first instance judge could not reasonably have concluded that the child had not lost his habitual residence in Australia.  Thus we are not persuaded that the Lord Ordinary’s finding-in-fact set out in paragraph [31] above was one which was not reasonably open to him.

[35]      In any event, it is our opinion that the correct date for assessment of the child’s habitual residence in terms of Article 3 of the Convention was the date on which the respondent unambiguously advised the petitioner that she and the child would not be returning to Australia (namely 20 June 2016):  cf Wall J in In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, pages 79C-E, and 81E-H;  and Lord Hughes in A v A (Children: Habitual Residence) [2014] AC 1, paragraph 78.  On that basis, the Lord Ordinary was all the more entitled to conclude that the child had not so integrated into Scottish social and family environment as to lose his habitual residence in Australia.

[36]      It will be seen that, in this particular case, we have not been persuaded that the Lord Ordinary failed to identify the facts upon which he relied;  or that he failed properly to assess the child’s social and family circumstances (including the circumstances of his parents);  or that he gave undue weight to any particular factor;  or that he failed adequately to explain the reasons for his decision.  In our opinion, the Lord Ordinary’s assessment of the child’s habitual residence and the engagement of the Hague Convention cannot be criticised. 

 

Wrongful retention

[37]      For all the reasons given above, it was in our view reasonably open to the Lord Ordinary to conclude as a matter of fact that the child –

“ … has not acquired a habitual residence in Scotland and remains habitually resident in the Australian jurisdiction”

 

(paragraph [12] of the Lord Ordinary’s Note).  Further it was reasonably open to the Lord Ordinary to conclude in paragraph [7] of his Note that the steps taken by the respondent in Scotland –

“were designed for a purpose and that purpose potentially involved matters which were relevant to the child’s welfare and … these steps were taken without any consultation with the joint custodian.”

 

In other words, the steps taken by the respondent without consultation with the petitioner constituted a breach of the petitioner’s parental rights, thus engaging Articles 3 and 4 of the convention.

[38]      It follows that the child was wrongfully retained in Scotland on 20 June 2016, or, at the latest, on 8 August 2016.  Thus in terms of Articles 12 and 13 of the convention, the Lord Ordinary was obliged to make the order he did, returning the child to Australia.  Only if some question of discretion arose on the basis that the petitioner had –

“ … consented to or subsequently acquiesced in the removal or retention”

 

(Article 13(a) of the convention), would it be open to the Lord Ordinary to exercise that discretion and make a different order.  We therefore turn to consider the question of consent.

 

Consent

[39]      Having referred to the petitioner’s understanding that the visit to Scotland was to be for a finite period, with both respondent and child returning to Australia on 8 August 2016 using the return ticket, the Lord Ordinary apparently (and possibly per incuriam) treated the issue of consent as obiter and stated:

“ … I am bound to say that I would have been of a mind to decide [the issue of consent] in favour of the petitioner …”

 

It is clear from what we have said in this opinion that we consider that the Lord Ordinary took into account all the evidence in the case.  While he may have treated the issue of consent as obiter, nevertheless he cannot be said to have erred in reaching the view he did.  Although the respondent in her affidavit (paragraph 32) stated –

“ … [the petitioner] did not limit the duration of our trip and said he was happy for me to purchase a one way ticket if I wanted”

 

and further explained that a return ticket had been purchased only because a single ticket was too expensive, there was ample evidence in the affidavits and productions entitling the Lord Ordinary to conclude that the petitioner had not consented to an open-ended or indefinite stay in Scotland.  In this context we refer inter alia to the petitioner’s affidavits;  the petitioner’s email dated 22 June 2016 sent when he first learned that the respondent did not intend to return to Australia (paragraph [8] above);  the respondent’s own email dated 18 June 2016 (paragraph [30] above);  and the affidavits of some of her friends.  On the basis of that evidence, it cannot in our opinion be said that the conclusion reached by the Lord Ordinary was not reasonably open to him.   

 

Decision

[40]      For the reasons given above, we refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 24 November 2016.  We remit the case back to the Lord Ordinary with a direction that he arrange a By Order hearing to address any practical matters which might arise from the refusal of the reclaiming motion.  Meantime we continue any question of expenses.