[2013] CSOH 187



in the petition of



for an order under the Child Abduction and Custody Act 1985


Petitioner: Malcolm, advocate; Morisons LLP

Respondents: Burr, advocate; Caesar & Howie

6 December 2013


[1] The petitioner originates from Pakistan but attained French citizenship in 1998. He is the father of two children, both boys, "A" born 12 November 1999 and "M" born 8 September 2003. The respondent, the boys' mother, is also understood to be a French citizen of Pakistani origin. Both boys were born in France and lived there until 3 August 2012 when they were brought to Scotland by their mother for a family wedding. The petitioner agreed to a visit to Scotland by his wife and children for that purpose but expected them to be returned on 29 August 2012. The respondent and the children did not return at the expected time. The respondent had taken the decision that she wished to leave the petitioner, the parties' marriage having become unhappy. It is not in dispute that the petitioner has rights of custody in respect of both children in terms of article 3 of the Hague Convention on the civil aspects of international child abduction, incorporated into domestic law as Schedule 1 to the Child Abduction and Custody Act 1985 ("the Act"). Nor is it disputed that the children were at all material times habitually resident in France and that they have been wrongfully retained in Scotland by the respondent since 29 August 2012. In these circumstances the petitioner seeks an order for the return of the two children to France in terms of the said Act. The petitioner continues to reside in the former matrimonial home in a north western suburb of Paris.

[2] These proceedings were initiated by first orders granted by the Lord Ordinary on 19 September 2013. Accordingly, a period in excess of one year passed between the wrongful retention and the raising of the petition for return. In those circumstances, the respondent relies, inter alia, on the terms of article 12 of the Hague Convention. It provides an exception to the requirement to order the return of a child removed from his or her habitual resident forthwith if it is demonstrated that that child is now settled in his new environment. The respondent relies also on the provisions of article 13 of the convention. Two separate defences to a return to the country of habitual residence are raised under that article. First, under article 13(b) it is contended that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Secondly and separately it is said that the children object to being returned and have attained an age and degree of maturity at which it is appropriate to take account of their views. In relation to the issues of settlement and objection to return a remit was made on 3 October 2013 to Mary Loudon, advocate to enquire into and report to the court on various matters relevant to those issues for assistance in the court's determination. That report now forms number 13 of process. In addition to the benefit of that report, I had also affidavit evidence from the petitioner, the respondent and other witnesses. The basic facts of the wrongful retention are undisputed and in many ways the petitioner was not in a position to contest the facts stated in relation to the current circumstances of the children, having not seen them since October 2012. However, the nature of the parties' relationship and the reasons for the breakdown of the marriage were in dispute and it was agreed that, on the authority of D v D 2002 SC 33 I could not prefer one party's affidavit over another in relation to these disputed issues unless there was other material allowing me to conclude that one version or the other was to be preferred. Standing the concessions made about rights of custody, habitual resident and wrongful retention, it was agreed that the onus was on the respondent to establish settlement and/or either of the article 13 defences and I heard submissions on behalf of the respondent first. However both counsel followed a pattern of addressing initially the issue of settlement, followed by the "grave risk" defence and finally the issue of objection to return and views of the children. Accordingly, I have followed the pattern of addressing each of these issues in turn in this opinion.

Article12 and settlement
[3] Article 12 of the Hague Convention is in the following terms:

"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 interpretation of article 12 has been the subject of authoritative discussion both in this jurisdiction and in England. I was referred in particular to the Inner House decisions in Perrin v Perrin 1994 SC 45, Soucie v Soucie 1995 SC 134 and NJC v NPC 2008 SC 571. Counsel for the respondent relied also on the decision of Lady Paton in the Outer House, J v K 2002 SC 450. The House of Lords decision In Re M and another (Children) (Abduction); Rights of Custody [2008] 1 AC 1288 also provides authoritative guidance on the issue of how to approach article 12. In essence, it is now well established that if it is shown that a child has become settled for the purposes of article 12, the court then moves to a second stage of discretion and decides whether or not to return that child within the convention procedures. In Soucie v Soucie the Extra Division expressed the following views on the correct approach:

"...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. ...this is not just a balancing exercise between the requirements of the convention on the one hand and the interests of the child on the other. Such a balancing exercise may be appropriate when considering the discretionary powers of the court under article 18, which will come into play if the proviso to article 12 is established or indeed if any of the matters contained in article 13 are established. 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."

In Perrin v Perrin the Extra Division cited, with approval, a passage from the judgment of Bracewell J in the case of R N (Minors) (Abduction) [1991] 1 FLR 413 at 418 which is in the following terms:

"What factors does the new environment encompass? The word 'new' is significant, and in my judgment 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, that can only be relevant in so far as it impinges on the new surroundings. Every case must depend on its own peculiar facts...whether or not the mother herself is settled in the UK is not a relevant factor. It is not the welfare test that I am concerned with in applying article 12."

The more recent case of NJC v NPC 2008 SC 571 concerned a father who had taken his children from France and had moved around avoiding them being returned through concealment and subterfuge. While this is not such a case, it is noteworthy that the Extra Division cited, with approval, the English decision of Cannon v Cannon [2005] 1 WLR 32 where it was held that, when determining whether a child was "settled in its new environment" for the purposes of article 12 of the convention, it was necessary to have regard to the emotional and psychological elements of settlement as well as the physical characteristics. In that context the earlier decision of Lady Paton in J v K 2002 SC 450 (at paragraphs 54 - 55 ) is of interest. Consideration was given in that case to the ability of the child, if necessary, to adapt to new environments, something which has a bearing on whether a child should be uprooted by a return.

[4] Mr Burr, for the respondent, submitted that on the facts of this particular case there was sufficient evidence for a finding that the children are settled in Scotland in terms of article 12. The respondent's affidavit number 7/1 of process was referred to. She states that she has settled in a village in central Scotland where she has some family support from her sister, brother‑in‑law and their immediate families. She has resided at the same address for over a year but will be moving shortly to another similar house nearby. A supplementary affidavit of the respondent number 7/8 of process indicated that she has agreed a five year lease of that property and will gain entry to it on 12 November 2013. Regrettably, despite my giving a clear indication that it was unsatisfactory that no documentary confirmation of the position had been lodged, none was ever produced. However, on the second day of the hearing, an address of the new property was provided. It is in the same area in which the respondent and the children have been living for over a year and would not involve a change of school or GP. Counsel for the respondent also urged me to place considerable reliance on affidavits from "M" and "A's" school teachers, number 7/3 and 7/4 of process respectively. "M's" primary school teacher gives evidence by affidavit to the effect that "M" is "very settled in school". He is in the top group for spelling and is always very punctual and well-presented. His attendance record is excellent. He is regarded very much as an asset to the school and to his class. The affidavit from the pastoral head teacher in "A's" secondary school confirms in her affidavit number 7/4 of process that she has been "A's" pastoral or guidance teacher since August or September 2012. She confirms that "A" has "settled very well into the school system and gets on very well with all of his teachers and all of his peer groups". "A" is clearly an able pupil academically. Not surprisingly, he particularly excels in French and within the Scottish school system will be able to attain qualifications in that subject earlier than others in his year group. Again it is confirmed that "A" is always very punctual and well‑presented in attending school. The pastoral head teacher concludes by confirming that "A" is "progressing extremely well and I think it would be extremely disruptive if he was to be removed from [his high school]". Some emphasis was also placed on an affidavit of the respondent's brother‑in‑law who currently lives close to the respondent and the boys. While that witness is clearly not independent in expressing a view in the way that the teachers are able to be, he does describe the boys as "very happy and well settled" in the area of central Scotland in which they are living. He and his wife, one of the respondent's sisters, have been settled in the area for eight years and live there permanently. The other material on which the respondent founded in seeking to establish settlement for the purposes of article 12 was Mary Loudon's report. Her remit from the court included the question of the extent to which the children are settled in their current place of residence. At page 8 of the report, Ms Loudon notes that when she spoke with "A", she formed the view that he clearly enjoys being able to see a lot of his extended family in Scotland. This contrasts with the situation in France where he had the impression that his mother was not allowed to have friends visit. The reporter concludes in relation to "A" that having seen him at school and at also at his home

"I have no doubt that he enjoys his current living arrangements and is settled here. The possibility of a return to France, in my view, is causing him huge anxiety."

So far as "M" is concerned Ms Loudon records that he too talks of his life in Scotland in very positive terms although he seemed also to talk of life in France a little more favourably than his brother. He would be sad to return to France because he likes living in Scotland. Ms Loudon concluded that "M" feels settled in Scotland.

[5] For the petitioner, Miss Malcolm submitted that a number of factors should be taken into account in deciding whether or not the respondent could truly be said to have established that the boys were now settled in this jurisdiction. The first point was that proceedings had been raised a very short time after the necessary one year period had expired. It was clear from the authorities, particularly Perrin v Perrin (at page 51) that if proceedings were raised such a short time after the expiry of a year, the evidence relied upon to establish settlement would have to be of a good quality. It was submitted that the present case was on the borderline of a discretionary rather than a mandatory return. It should be noted that the boys spent their whole lives in France before they were wrongfully retained in Scotland. Article 12 could only operate to refuse return if their settlement here was so well established that it overrode the duty of the court to send them back to their habitual residence. It was submitted that there were real questions about whether the evidence of settlement was of good quality. On her own evidence, in number 7/1 of process, the respondent is living in private rented accommodation. Her lease came to an end during the course of the hearing although she will stay there until she moves to the new tenancy on 12 November 2013. There had to be a question mark about whether it was settled accommodation when the respondent was moving within a space of 12 months or so. The remarks of the respondent's brother‑in‑law in number 7/2 of process that the boys were more confident now than when they had first arrived was said not to go to the issue of settlement because their lack of confidence on arrival may well have been related to their presence in what was effectively a foreign country to them. So far as the school attendance was concerned, counsel for the petitioner pointed out that English is the third language for the children. Throughout their lives, Urdu has been spoken at home with their education until 2012 having taken place in French. Both boys are French Muslims and English is new to them both in linguistic terms and culturally. The school reports produced by the respondent numbers 7/5, 7/6 and 7/7 of process, while in glowing terms, suggested that these were children who were still settling into their new environment rather than children who were wholly integrated. For example, they were receiving extra support in language given that they had never been taught in English before. It was clear from the documents produced by the schools the boys had attended in France (see number 6/29 of process) that they could return there without difficulty. Counsel submitted that there was nothing in the material before the court to suggest that the children were "more settled" in Scotland than they had been in France. It was submitted that while general statements had been made about their links to friends and family in this country, only one or two specific friends had been mentioned. So far as Ms Loudon's report was concerned, it was pointed out that the older child "A", was maintaining contact of his own volition with friends in France by Skype and telephone. There was a lack of information to suggest that the boys were integrated into the local community outside school. There was an established family set up in France. Another of the respondent's sisters lives 17.5 kilometres from the family home there. Both she and the petitioner suggest that there was an ongoing relationship between the respondent and her sister while in France. The respondent's first affidavit number 7/1 of process supports that to some extent, although her supplementary affidavit number 7/8 of process indicates that she and that sister were not close. It was submitted that the boys had enjoyed wider activities and more life in the community in France and that they were not sufficiently settled in Scotland to justify a refusal to return them. It was insufficient that they attended school and had been registered with a general practitioner. The seeming lack of security in their accommodation circumstances had to be a factor. It was accepted that there would be a disruption and a degree of upset if they were required by the court to return to France but that had to be balanced against the considerable ongoing connections that they children had in that jurisdiction.

Article 13(b) and the grave risk of physical or psychological harm defence
[6] Both counsel agreed that guidance on a defence under article 13(b) of the convention could probably best be found in the decisions of the UK Supreme Court in House of Lords respectively in the cases of In Re E (Children) (Abduction); Custody Appeal [2012] 1 AC 144 and In Re D (A child) (Abduction); Rights of Custody [2007] 1 AC 619. Baroness Hale and Lord Wilson, at paragraph 34 of In Re E expressed the following view:

"...the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (emphasis supplied). As was said in Re D [2007] 1 AC 619, para 52, 'intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate.' Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent...if there is such a risk, the source of it is irrelevant: eg, where a mothers subjective perception of events leads to a mental illness which could have intolerable consequences for the child. "

However, counsel for the petitioner submitted that while the cases of In Re E and In Re D might have impacted on what things might create a grave risk for a child, the strength of the test that required to be satisfied to succeed under article 13(b) has not been altered. Reference was made in that context to In Re C (Abduction): Grave Risk of Psychological Harm [1999] 1 FAM LR 1145. In that case Ward LJ reviewed the authorities and concluded that there was an established line that the court should require

"clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

Miss Malcolm submitted that there was nothing in the cases of In Re E and In Re D that diluted that rule. They simply expanded the context in which grave risk or intolerability might take place. This was clear from the dicta of Baroness Hale of Richmond in the case of In Re D at paragraphs 50 - 51, where she declared it obvious

"...that these limitations on the duty to return must be restrictively applied if the object of the convention is not to be defeated...the authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that expansive application of article 13(b) which focuses on the situation of the child, could led to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the convention to require it. a restrictive application of article 13 does not mean that it should never be applied at all."

[7] Article 13 of the convention provides, inter alia, as follows:

"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 -

(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."

It should be noted that section 1(3) of the 1985 Act now provides that the provisions of the convention are all subject to article 60 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 (hereinafter referred to as Brussels II bis). In relation to an article 13 defence based on grave risk, the significance of that is that article 11.4 of Brussels II bis provides that:

"A court cannot refuse to return a child on the basis of article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."

Counsel were agreed that it was for the respondent first to establish grave risk of physical or psychological harm on a return before any need for protective measures arose.

[8] In seeking to persuade me that there was such evidence in this case counsel for the respondent relied again on her affidavit number 7/1 of process. Various allegations are made about the petitioner's behaviour towards her during the marriage. I will not repeat them here. In essence, the petitioner is portrayed by her as a controlling individual who kept her short of money spending it on himself, that he was mentally abusive towards her and that he was sexually aggressive. The respondent claims to have confided in her sister (the one living in Scotland) about these matters. Some further information is provided in the respondent's supplementary affidavit. Little if anything is said about any ill‑treatment of the boys by the petitioner. However, some aspects of the respondent's claims found support in the affidavit of her brother‑in‑law number 7/2 of process. That witness claimed to have observed arguments in the course of which the petitioner became abusive towards the respondent. Further support for the respondent's position could, it was contended, be found in Mary Loudon's report. The older child, "A", provided some details of the behaviour he had observed while in France. He confirmed to the reporter that the petitioner's behaviour had been affected by drinking alcohol and painted a picture of his having heard and seen events while in the home in France suggestive of his parents' marriage breakdown.

[9] Counsel for the petitioner submitted that this was not a case in which any grave risk for these boys had been established such that the protective measures mentioned in article 11.4 of Brussels II bis would be required. Her fall-back position, however, was that in the event that I was satisfied that grave risk had been established such protective measures were in any event present. In essence, while the respondent's position in her affidavit was that the petitioner had been abusive towards her and the marriage was clearly unhappy there was no substantial allegation of overt physical abuse of the sort that the children might have seen. In any event, the sexual allegations were strenuously denied by the petitioner who regarded them as "scandalous and appalling" (see number 6/31 of process). Counsel sought to show that there were internal inconsistencies in the respondent's approach. For example, she alleged in her affidavit that the petitioner kept all the family money and did not provide for her, while accepting that he had sent £1,500 to Scotland for her to enable her and the children to fly back home. Her allegations of being kept short of money are also somewhat inconsistent with the accepted facts that the petitioner had paid for her and the children to come to Scotland for a wedding while he stayed in France to work. Further, she suggests in her affidavit that she told the petitioner at one point that she was leaving him, something that might seem surprising if she was afraid of him and had been subjected to such abuse. In any event, her claim that she had told the petitioner she was leaving seems inconsistent with him having agreed to let her travel to Scotland if he was the kind of man that she claimed he was. More importantly perhaps, it was noteworthy that the petitioner had visited the children in Scotland in October 2012. He had stayed overnight in the respondent's home. There was nothing is the respondent's narration of that visit to suggest that the petitioner's behaviour was threating when he came to Scotland. It was only after he realised that the boys would not be returning with him that he is said to have threatened to involve the authorities. There was absolutely nothing in any of the information available to the court to suggest that these children should not be having a relationship with their father. It is now over a year since he has seen them. While he does not appear to have taken any steps to force that issue, it may be that is, at least in part, due to difficulties with legal advice he was receiving at an earlier stage. Counsel for the petitioner submitted that I should take nothing from the fact that there were references in the affidavits to the boys being somewhat edgy and nervous when they first arrived in what must have been a strange environment for them in Scotland. There was simply nothing to support a contention that the environment in France that they had left was a situation in which they had been afraid. It was acknowledged that the children's preference in this case was to reside with their mother who had always been their primary carer. However, the younger child, "M", had told the court reporter that "it would be good" to see his father. The other child, "A", recalled a time when the petitioner had looked after the boys while the respondent was in hospital in France for a week. Albeit he had some criticisms to make about delays in his evening meal being made by the petitioner, the basic fact was that the respondent must have trusted her husband sufficiently to leave him in charge of the children. It was noted that the respondent indicates in her affidavit that she does not intend to return to France. While the children would no doubt be unhappy if they were to return without her, there was no evidence to suggest that they would be subjected to any abuse by their father. In any event, the court should perhaps be sceptical about the respondent's position. It remained to be seen whether she really would allow herself to be separated from her children if an order for them to return to France was made. It had long been accepted that a mother in this situation could not thwart the operation of the convention by creating a risk to a child by refusing to accompany him or her back to the country of origin - C v C (Abduction Rights of Custody) [1989] 1 WLR 654.

[10] In relation to her esto position, counsel for the petitioner submitted that if I was satisfied that the respondent had established grave risk such that protective measures were required for the children, I should still order a return as such measures were in place. The information available from the petitioner and one of the respondent's sisters was that if the respondent and/or the children do not wish to return to the family home they could all stay with the respondent's sister who lives 17.5 kilometres away. Counsel accepted that a commute of 35 to 40 minutes each way to school might not be ideal but it was manageable and not a large obstacle to return. It was a matter for the children and the respondent whether they would prefer that to living in the family home. The petitioner stated clearly that the children would come to no harm were they to return to him. This was confirmed in his supplementary affidavit number 6/31 of process. In any event, a temporary home with the respondent's own sister might be for a short period until the court could deal with matters in France. It was accepted that if grave risk was established the question of a return was then for the courts discretion but it was suggested that this case fell far short of the strength of evidence required to establish an article 13(b) defence.

The children's objections to a return - article 13
[11] Article 13 provides, in the following terms, a separate basis on which return might be refused. ;-

"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 an age and degree of maturity at which it is appropriate to take account of its views."

That provision is also now subject to article 11 of Brussels II bis. Article 11.2 of the council regulation provides as follows:

"When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his age or degree of maturity."

A number of authorities were relied on by counsel in relation to this issue. The decision of In Re M and another (Children) (Abduction): Rights of Custody [2008] 1 AC 1288 was cited by both sides. At paragraph 46 Baroness Hale expressed the following view:

"In child's objections cases, the range of considerations may be even wider than those in other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are 'authentically her own' or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."

It was agreed by counsel that a good example of the approach to be taken could be found in the decision of Lady Smith in the Outer House in M Petitioner 2005 SLT 2. In that case, at paragraph 38, Lady Smith indicated that the approach she would take would be to ask two questions. First, did the child object to being returned and secondly was the child of an age and maturity at which it was appropriate to take account of his views. Then, if the answers to one and two were in the affirmative it had to be asked whether discretion should be exercised in favour of refusing to order the return. If one moved to the discretion stage that involved considering questions of comity, convenience and the general principle that it is in the best interests of a child that his welfare be determined by court of his habitual residence. Consideration would also require to be given to the strength of any objection, whether it is independent of the views of the abducting parent, whether the child appreciates that the purpose of the order for return to which he objects would be to enable the court in the other country to decide on his future and his welfare in the immediate future. Counsel for the petitioner referred also to the case of A petitioner 2012 SLT 370 and IGR [2011] CSOH 208. Counsel for the respondent sought to emphasise the non‑determinative nature of the views stated by any child even one who had attained a reasonable degree of maturity - Singh v Singh 1998 SC 68. In that case the Extra Division expressed matters as follows:

"It is clear that where there is an objection to return, by a child of sufficient age and maturity were his views to be taken into account, these particular factors, of objection and maturity, do not merely open the door to an exercise of the courts discretion, but are themselves factors to be taken into account in the exercise of that discretion. Thus, the court must put in the balance not merely the fact of an objection, but its nature and basis; and as well as taking into account the views of the child, the court will give greater or lesser weight to these views, in accordance with a child's actual age and the degree or level of maturity which the court considers it to have. In addition to these factors, it is clear that in exercising its discretion, the court must bear in mind the general policy of the convention which, subject to exception such as those permitted in terms of article 13 envisages and is designed to achieve the return, forthwith, of children wrongfully removed or retained, to the state of their habitual residence."

[12] The issue of the discretion to be exercised by the court if the fact of objection and sufficient age and maturity were both established was also discussed in the case of In Re M and another (Children) (Abduction); Rights of Custody (cited above). There, Baroness Hale, at paragraphs 32 - 43, reviewed various authorities and concluded as follows:

" 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."

Counsel were agreed that if I was satisfied in relation to either child that he objected to a return and was of a sufficient age and maturity for his views to be taken into account, I would then move to the stage of exercising discretion at large.

[13] So far as the information available was concerned, counsel for the respondent placed heavy reliance in this chapter of his argument on Mary Loudon's report number 13 of process. Dealing first with the older child, "A", there was little doubt from the report that he objects to a return to France and is old enough and mature enough for his views to be taken into account. The reporter deals with the question of whether "A's" views are independent of parental influence and concludes that while inevitably given the closeness between the two, the respondent has, in a general sense, some influence on "A", she did not consider that the respondent was imposing her own wishes on "A" as regards the issues considered in the report. It was clear that the reporter had been extremely impressed by "A" who she described as an intelligent, mature young person. She concluded that she had "...absolutely no doubt that the views expressed to me were his own genuine views." The older child was unwilling even to consider much contact with his father at the current time although he did not rule it out in the future. It appeared that, for a boy of his age, "A" has sufficient understanding of the purpose of a return to France and that did not alter his position that he did not want to return. So far as the younger child was concerned, counsel for the petitioner accepted that the reporter had reached a different conclusion. She had fallen short of confirming that "M" was old enough and mature enough to object for the purposes of article 13 to a return to France. That said, it could not be ignored that "M" had expressed a similar view to that of his brother. There was no suggestion in this case that the children should be separated. Accordingly, an intolerable situation for the younger child would be created if his older brother's views were acceded to but his were not - see Urness v Minto 1994 SC 249 at 266F - H. If the matter was one for discretion at large it should be taken into account that it might be difficult for the children to reside with the respondent's sister in France. Even the petitioner had accepted in his affidavit that the commute to school would not be easy - see number 6/21 of process. While it was not clear from the affidavits, counsel had information that the respondent's relationship with her sister in France had deteriorated over time. As the discretion was a discretion at large, all of the factors could be taken into account including the issues that were relevant under the settlement ground. These were children who were doing very well at school, who did not wish to return to France, and for whom there would be inevitable risks were they uprooted for no particular purpose.

[14] Counsel for the petitioner submitted that so far as the younger child was concerned, it was clear that he was not of sufficient age and maturity for his views to be taken into account or at least that his views did not amount to an objection for the purposes of article 13. It was quite clear that the younger child was very influenced by his mother's thoughts and feelings. There was a very high level of consistency between what the respondent was saying and what the younger child seemed to say about his father's behaviour towards his mother. It was accepted that the older child, "A", was in a different position in that he did appear to be stating an objection and was a boy of sufficient maturity to express a view. However, counsel for the petitioner concentrated on the issue of whether "A's" views were influenced by the respondent's wishes. It was submitted that they were and that his views would have to be taken into account with caution. They should be given less weight because of the mother's influence. Some of the reasons he gave did not relate to objections to a return to France itself but amounted to an objection to returning to his father. In any event, "A's" views were not determinative. If it was accepted that he had stated a legitimate objection, and the matter was within the discretion of the court, then a number of factors required to be taken into account. These included, (i) the settlement defence only being invoked by a matter of days beyond the one year period, (ii) the established school family and friends in France with whom there remains some contact, (iii) the lengthy period of time in France before the wrongful retention, (iv) the linguistic and cultural origins of the boys who are French Muslims, (v) the relatively loose connections with Scotland other than home and school, (vi) the lack of certainty in the respondent's accommodation situation, (vii) the ability of the French state to deal with any dispute about residence and (viii) contact and the relative ease with which both boys could contemplate and effect a return. Counsel for the petitioner very fairly conceded that there should be no question of splitting the children in this case she accepted that the kind of intolerable situation that arose in the case of Urness v Minto cited earlier, would arise for "M" if he was forced to return without "A".

Discussion (General)

[15] The starting point in every case brought under the Child Abduction and Custody Act 1985 is the requirement to return children wrongfully removed from, or retained outwith, the country of their habitual residence, to that jurisdiction so that the country of habitual residence can determine any dispute relating to their care. In this case there is no dispute that the respondent has wrongfully retained the parties' children, "A" and "M", in Scotland. Their father the petitioner has rights of custody in relation to them and he agreed only to a visit by his children to Scotland in August 2012, not to a change of their residence. On any view of the facts disclosed in the affidavits, the respondent' s primary motive in retaining the children in Scotland was the implementation of her decision to separate permanently from her husband. It was not motivated by a concern that France was not a jurisdiction in which her children could thrive. While the children may have been exposed to some unhappiness and tension in their parent's marriage, they were living a full life in France and doing well educationally. The respondent's actions in retaining them outwith the country of their birth and upbringing are in many respects reprehensible. However, given the passage of time since she took that course of action, different considerations from those associated with the aim of a prompt return to the county of habitual residence require to be addressed. I will address these in the order in which they were presented.

Discussion (Settlement)

[16] There was no dispute about the correct approach to cases in which it is argued, in terms of article 12 of the Convention that the children have settled into their new environment, all as set out in para [3] above. In this case I have had the benefit of information about the essential elements of the new environment, namely, home, school, people, friends, activities and opportunities. The available material must be scrutinised to assess its quality and to determine whether the children are sufficiently well settled here to override the duty to return them to their country of origin. In considering this matter I have placed far less weight on the affidavits of the respondent and her brother in law than on the independent views of the two school teachers and the court reporter. That independent input supports without question that these two boys are well settled at school in the central belt of Scotland and that they have grasped the opportunity to become tri-lingual. There is mention in the affidavit of "A's" guidance teacher (number 7/4 of process) that "A" has integrated well with his peer group as well as with the teaching staff. This is relevant given the criticism made on behalf of the petitioner that there was little mention of socialising outwith the family. It is natural that the boys' social contacts will emanate from their peer group at school. The independent material, far from suggesting that these boys are socially isolated, is suggestive of them being fully integrated. That the younger boy, "M", seems to excel at spelling in a language that was foreign to him until August 2012 is remarkable and again supports a picture that he has embraced the opportunity of being educated in this new language. More importantly, however, the boys have been interviewed both at home and at school by a careful and experienced court reporter who concludes that they are settled here. It is interesting that Ms Loudon's conclusion in relation to the younger boy, "M", records that he "feels settled". This echoes the need to have some regard to the emotional and psychological elements of settlement as well as the physical characteristics, all as approved in NJC v NPC 2008 SC 571. This element is particularly pertinent so far as "A" is concerned, as the reporter records not only that he is settled in Scotland but that he expresses anxiety about the prospect of a return to France, number 13 of process, ( page 8). The only aspect of the relevant factors in assessing settlement that has caused me concern is the respondent's failure to produce material in relation to the imminent house move. While I am satisfied that it will not involve a change of school or GP, or affect the children's now established routine, it is of course another change to their accommodation position since arriving in Scotland in August 2012. Had the information in relation to the boys' settlement at school and in Scotland generally been less persuasive, I would have regarded the accommodation issue as one that would have a significant bearing on my decision on this aspect of the case. However, I do not regard private rented accommodation as a particularly transient form of accommodation as was suggested on behalf of the petitioner. It is clear that the boys are settled at home and at school and I consider that in the particular circumstances a house move within the same area does not materially lessen the degree of settlement that has been established. In all the circumstances I consider that the test in article 12 is met and these boys are settled in their new environment. As a result I require to move to the stage of exercising my discretion in considering whether still to return them to France. I will do so after considering the other two defences stated.

Discussion (Grave risk of physical or psychological harm)

[17] The authorities referred to at para [6] above make clear that something more than the inevitable upset associated with acrimony between separating parents is required before grave risk under article 13 can be established. It is noteworthy in this case that, for all of the complaints made by the respondent about her husband's behaviour during the marriage, there is no serious suggestion that the boys themselves were subjected to the kind of unacceptable behaviour that would bring this defence into play. At worst they were exposed to an unhappy atmosphere when their parent's marriage was breaking down, the sort of "rough and tumble, discomfort and distress" referred to by Lady Hale in the case of In Re E (Children) (Abduction) : Custody Appeal at para 34. In expressing that view, I should record that I have been unable to reach any conclusion on the most serious aspects of the respondent's allegations against the petitioner as there is no independent material through which I might be able to test the veracity of either her account or the petitioner's clear denial that he behaved in such a way. What I can conclude is that, prior to the boys being retained in Scotland, no concern about their welfare appears to have been expressed and they both led full and active lives, performing well at school and engaging in various extra-curricular activities. The complaints made by "A" in particular about his father's behaviour when they were living in family are of a sort that might well lead him to have a firm view about which of his parents he would wish to care for him following separation. They do not, however, disclose such concerns about what would face these boys on a return that they require protection from the risk of harm. The respondent appears to have been sufficiently comfortable with the petitioner's presence that a visit by him to Scotland in October 2012 was without incident until the issue of the boys not returning with him to France was raised. While the children's loyalties in this case are clearly with their mother, there is in my view nothing substantial to support the claim that they would be exposed to any kind of serious risk should they be returned to France. Even had I concluded otherwise, I would in any event have regarded this as a case where appropriate protective measures could be put in place to avoid any such risk. If the respondent chose not to return to France the children could stay with her sister pending a determination about their longer term future. For these reasons I would have had no hesitation in granting the prayer of the petition had the "grave risk" defence been the only one put forward.

Discussion (Objection to return)

[18] In considering this third issue I have had regard to the various authorities cited to me. In particular I have followed the now well established approach (per Lady Smith in M Petitioner and Baroness Hale in In re M and another (Children)(Abduction) : Rights of Custody) of first considering whether each child objects to a return and secondly whether he has attained an age and degree of maturity at which it is appropriate to take account of his views. If both of those conditions are satisfied in relation to any particular child, a discretion is then exercised.

[19] So far as the older boy, "A", is concerned, those two conditions are easily satisfied. He was found by the reporter to be an intelligent and mature young person and he has now attained the age of 14. His objections were clearly stated and found to be genuine. He had not been particularly happy when in France. He told the reporter that he "....liked the 'lifestyle' in Scotland, he liked 'this place', he liked his school and he enjoyed having his Auntie (his mother's sister) and family living nearby." He understands, insofar as any 14 year old could, the purpose for which he would be returned to France and he objects to a return on that basis - see Ms Loudon's report at page 7. In my opinion his objection and his stated views must be taken into account. In contrast, as was conceded by counsel for the respondent, the position of the younger child, "M", is rather different. He is just 10 and although he stated a position to Ms Loudon, it cannot be said that he is mature enough to state an objection to a return to France for the purpose of article 13. His views and preferences ought not to be ignored completely however and some regard may be had to them if the stage of exercising discretion is reached on another basis. The question that arises is whether, faced with such a situation of a mature child who objects and a younger sibling who is not sufficiently mature to object for the purposes of the Convention, it is appropriate to move straight to the stage of exercising a discretion in respect of a decision about whether to return both boys. In my view that would be to ignore the clear terms of the Convention. Article 13 envisages that where a sufficiently mature child objects to a return, the relevant authority may refuse to return that child. There is nothing in the Convention that suggests that there is a discretion to refuse to return other children in the same family solely on the basis that a sufficiently mature older or oldest child objects. In this case it was specifically conceded on behalf of the petitioner that if "A" was not returned on the basis of this ground alone, an intolerable situation would be created for "M" were he to be returned to France without his brother. On the basis of that concession I can move to consider the exercise of discretion in relation to both boys. As I have also found that the "settlement" defence is established, I would be exercising my discretion of the issue of return in any event.

Exercise of Discretion

[20] For the reasons given, I am of the view that there is a sound basis for two of the defences to a return in this case, namely settlement under article 12 and objection to a return (coupled with a consequent intolerable situation for the younger child) under article 13. I must then exercise a discretion, described by Baroness Hale as a discretion at large in In Re M ( Children) (Abduction: Rights of Custody) [2008] 1 AC 1288 at paras 32-48. In exercising such a discretion the objectives of the Convention are to be considered along with all other relevant factors but do not take precedence over them. The exercise includes an examination of the wider considerations of the children's rights and welfare.

[21] The children in this case have been living in Scotland since the end of August 2012 and although I have found them to be settled here, it is a case where the ability to invoke the settlement defence arose only a matter of days before the petition was raised. Further, these boys were born in France and had lived there all of their lives before their wrongful retention in Scotland. Their life in France could undoubtedly be resumed either with or without the respondent were an order for return pronounced. A French court could deal expeditiously with any dispute about their future care. These are all factors militating in favour of a return. On the other hand, these boys feel settled in Scotland, are enjoying life here and are very positive about the educational opportunities that living in this country has brought. Their emotional ties are primarily to their mother, the respondent, but they have both integrated well into their new wider environment. So far as "A" is concerned, his thoughts and feelings are of considerable importance in weighing up the kind of welfare considerations that should be taken into account when exercising a discretion of this sort. It is interesting that he reported to Ms Loudon that he did not miss his friends in France and that he kept up contact with them on the telephone or through Skype. While counsel for the petitioner argued that this displayed on-going ties with France that might suggest less weight should be given to his stated objection to return, in my view it tends towards the opposite conclusion. "A" knows that his peer group and education in France are available and could be resumed. He has regular reminders of that through contact with his friends there, but remains firm in his objection to a return. I place considerable weight on the conclusions of the experienced court reporter. She records that the possibility of a return to France is causing "A" "huge anxiety". That is a strong statement. To make an order that requires a fourteen year old boy to do something, when the very prospect of it contains such a large measure of anxiety for him seems self‑evidently antithetical to his best interests. A young person of "A's" age, intellect and maturity should not, in the circumstances, be forced to return to a previous environment against his wishes. It is hardly surprising that many of his stated reasons for objecting to a return are linked to the previous unhappy atmosphere in the family home as a result of his parents' marriage breakdown. Had he been unable to give positive reasons for preferring life in Scotland to life in France his views might have carried less weight. So far as "M" is concerned, his desire is to remain with his mother in Scotland, where he "feels settled". Accordingly I take into account that a return to France now carries a risk of further disruption to "M", albeit that he has less negative feelings about life there than his brother. "M's" emotional wellbeing stems from his closest relationships, which are with his mother and brother. It is accepted that he and his brother should not be separated.

[22] I have also placed some reliance, at this stage of the exercise, on the independent evidence from the teachers at the boys' current schools (affidavits numbers 7/3 and 7/4 of process). These reinforce the positive impact on both boys of the educational opportunities they now have. Regardless of the circumstances in which they came to be retained here, these boys are thriving in their changed linguistic and cultural setting. They are effectively now trilingual. Again the risk to "A" in being moved again is highlighted, his guidance teacher expressing the view that it would be " extremely disruptive" were he to be removed from his current school. That is a significant consideration. Counsel for the petitioner invited me to place little weight on the references in the affidavits (particularly that of the respondent's brother in law, number 7/2 of process) to the boys being edgy and nervous when they arrived in Scotland as that could have been due to their difficulties settling in a strange environment. However, what that suggestion ignores is that now that the Scottish environment is the settled one, the risk is of further change that, on the information before me, would be likely to upset their equilibrium again. They came to a place that was foreign to them and it has become home, partly through their own not inconsiderable efforts. Any change to what is now an established status quo would involve risk and uncertainty.

[23] The petitioner has not seen his children since October 2012. He has taken no steps to enforce contact, although that may well be as a result of inadequate advice being given to him at an earlier stage. He is not currently providing any financial support for them. It was conceded that the respondent has always been the boys' primary carer. The older child, "A", states that he does not wish a relationship with his father at present. The younger boy, "M", would appear to be amenable to some contact with the petitioner. It seems likely that the nature of any future dispute between the parties will be restricted to the issue of contact.

[24] In all the circumstances I have decided to exercise my discretion in favour of refusing to make an order returning the parties' children to France. For completeness I confirm that, even had I not found that the children were settled in Scotland and had moved to the stage of exercising discretion only on the basis of "A's" views and the consequent intolerable situation for "M" if he was separated from his brother, I would still have exercised my discretion by refusing to make an order for return.

[25] For all of the reasons given, I shall refuse the prayer of the petition.