UK – VIOLA – 1987

UK – VIOLA – 1987 (1987) (Return ordered) VIOLA v VIOLA. Mother took the child to Scotland. The court ordered the child back to Canada.


Court: Scotland
Number: 1988 SLT 8 (Outer House)

Applicant: Vincenzo Viola


Respondent: Lynn Viola

Date: 20 Feb 1987


in Petition of VINCENZO VIOLA

for an order for the return of


Act: Brailsford
Stuart & Stuart

Alt: Francis
Drummond & Co.

20 February 1987

This is is a petition brought in the name of Vincenzo Viola,
a Canadian Citizen. He married Lynn Alexander or Viola, the
respondent, at Ottawa, Canada on 16 July 1983. There is one child
of the marriage, Alana Marie Viola, who was born in Ottawa on 12
February 1986. It is not in dispute that the child lived with the
petitioner and the respondent in Ontario until 10 November 1986
when the respondent flew with the child from Toronto to Scotland.
She did so having pre-booked a return flight, the booking being
for 3 March 1987. The petitioner presents his application under
Section 1 and Schedule 1 of the Child Abduction and Custody Act
1985 and with reference to the relevant Rule of Court, No. 260J.

Mr Brailsford who appeared for the petitioner informed me
that his instructions came from the Secretary of State via the
Scottish Courts Administration. Section 1 of the Act provides that
the provisions of the Convention set out in Schedule 1 to the Act
“shall have the force of law in the United Kingdom”. Section
3(1)(b) provides that under the Convention the functions of a
Central Authority shall be discharged in Scotland by the Secretary
of State. Section 4 provides that the Court of Session shall have
jurisdiction to entertain applications under the Convention.
Schedule 1 to the Act sets forth the relevant terms of the
Convention. Article 7 in Chapter 2 of that Schedule lays certain
duties and responsibilities upon Central Authorities. They include
a duty to take all appropriate measures “(f) to initiate or
facilitate the institution of judicial … proceedings with a view
to obtaining the return of a child …”. Articles 8, 9 and 10
contain other provisions in relation to the functions of the
Central Authority. Thus it appears that in this case the petition
is presented at the instance of the appropriate Central Authority
albeit in the name of the petitioner Vincenzo Viola.

I was informed that this was the first case of its kind
before a Court in Scotland in which the matters that I had to
resolve fell to be decided. I was referred to an opinion of Lord
Prosser in the petition of Murray Sinclair Kilgour v Joanne
Kilgour in which his Lordship had to decide a question of
competency of a petition which bore to be presented under the same
Act. However the matter which his Lordship had to decide was not
one which arises in the present case. In Kilgour the point, as I
understand it, was whether it was competent to present a petition
under the Act when on the facts it appeared that the removal
occurred before 1 August 1986 and the wrongful retention also
commenced before that date. The significance of the date is that
by statutory instrument No. 1048 of 1986 the Act was brought into
operation on 1 August 1986. By statutory instrument of No. 1159 of
1986 a number of contracting parties were named for the purposes
of Section 2 of the Act. One of those contracting states was
Canada. That order also indicates that Ontario is one of the
relevant territories. Accordingly there is no doubt that some
months before the date when this child, Alana Marie Viola, was
removed from Ontario the Act came into force and it applies in
relation to Ontario, Canada. The decision in Kilgour is thus not
relevant to the matter before me. Nonetheless I would respectfully
refer to Lord Prosser’s analysis of the relevant provisions. I
agree with and adopt his analysis of these provisions so far as
relevant to the present case.

It was expressly conceded by Mr Francis on behalf of the
respondent that I should approach my decision upon the basis that
the removal of the child in the present case was properly to be
described as “wrongful” within the meaning of Article 3 of the
Convention. He did not challenge the suggestion that there might
also be wrongful retention. In my opinion the concession was very
properly given, having regard to the terms of the Article 3 and
having regard to the facts and circumstances disclosed in the
various productions which were lodged along with the petition. In
the light of the concession I need not analyse these productions
in any detail but it is plain that the petitioner has a right of
custody of the kind referred to in Article 3 paragraph A and that
that right of custody derives both from the statutory law
applicable in Ontario and from the Order of the District Court of
Ontario, date 23 January 1987, which is one of the productions.

Article 4 provides that the Convention shall apply to any
child who was habitually resident in a contracting state
immediately before any breach of custody or access rights. Again
it was a matter of concession that the child was habitually
resident in Ontario, Canada until the flight from Toronto to
Scotland in November 1986.

There was no suggestion that the provisions Rule of Court
260J had not been complied with. I am satisfied, in any event,
that they have been complied with.

I now turn to the merits of the matter. Article 11 provides
inter alia “The judicial or administrative authorities of
contracting states shall act expeditiously in proceedings for the
return of children”. The only further assistance one obtains as to
the meaning of “expeditiously” is to be found in the latter part
of the same Article which requires a Central Authority or judicial
authority to explain the reasons for “the delay” if a decision has
not been reached by that authority within six weeks from the date
of commencement of the proceedings. I think it is plain that
Article 7 requires the Court to decide the matter as soon as it
feels that it has before it the material relevant to such a
decision. Article 12 provides, “where a child has been wrongfully
removed or retained in terms of Article 3 … the authority
concerned shall order the return of the child forthwith”. Article
13 qualifies the wording in respect that the Court is not bound to
order the return of the child if the person opposing the return
establishes any of the matters specified in paragraph (a) or
paragraph (b). In the present case it was not contended on behalf
of the respondent that any of the matters, referred to in
paragraph (a), could be established. Mr Francis, for the
respondent, however, founded upon Article 13(b) which describes
the matter to be established in these terms, “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”. I should also at this stage for the sake of
completeness refer to the final part of Article 13 which reads,
“In considering the circumstances referred to in this Article, the
judicial and administrative authorities shall take into account
the information relating to the social background of the child
provided by the Central Authority or other competent authority of
the child’s habitual residence”.

At the commencement of the proceedings this morning,
handwritten answers were lodged on behalf of the respondent.
Thereafter Mr Francis for the respondent sought a brief
adjournment in order to obtain further instructions from his
client, who was present in Court; that was granted. Thereafter,
when I was satisfied that the true question before me was the
question of risk arising under Article 13(b), Mr Francis addressed
me in relation to that matter. He made a number of submissions. In
the first place he pointed to the last part of Article 13, quoted
above, and submitted that the Court had a peremptory duty to take
into account “the information relating to the social background of
the child provided by the Central Authority … of the child’s
habitual residence”. I note that there is no such information,
other than such information as can be gleaned from the documents
lodged by the petitioner in support of the petition itself. No
doubt those documents contain information relating to the social
background of the child and no doubt those documents are in this
instance provided by the Central Authority. However, I would not
regard them as being documents of the character of an independent
enquiry into the child’s social background. In substance,
therefore, Mr Francis was asking that I should delay my decision
until an opportunity had been afforded to him to obtain from the
relevant Central Authority in Ontario a report or other
information relating to the social background of the child. I do
not consider that I am obliged to do that by Article 13. I think
there could well be circumstances in which the Court would decline
to make an order in the absence of information of this character
if it were thought that such information was likely to be
available at an early date, and might assist the Court in deciding
the question which it had to decide. However, it appears to be
extremely unlikely that any such information exists at present
adverse to the petitioner’s claim. I consider this to be unlikely
because it appears to be highly improbable that the central
authority would have asked the Secretary of State to facilitate
the present proceedings if the central authority in Ontario had
information adverse to the petitioner’s claim for the return of
the child.

Turning to the terms of Article 13(b), Mr Francis did not
suggest that there was before him any evidence on which he could
properly assert that there was a grave risk that the return of the
child would expose that child to physical harm. What he suggested
was that there was at least a prima facie case for saying that if
the child were returned to Canada it might be placed in “an
intolerable situation” and was, therefore, also the possibility of
psychological harm. He then set forth the considerations that in
his submission would support such a case. (This submission
effectively superseded the answers, except in so far as they
amplified one of the points that he made). The considerations he
placed before me were as follows. First of all the child would be
looked after by the petitioner’s father. He is a man aged 57 who
is disabled from employment. It was asserted that he suffers from
severe headaches and has occasional bouts of blindness. It was
also said that he speaks Italian but no English. Thus the child
would be returned to a household in which the only language spoken
was or might be Italian in a country where Italian was not the
official language or one of the official languages. Secondly, it
was said that the petitioner himself worked from either 7 am until
3 pm or from 11 am until 5 pm and also worked overtime.
Accordingly the petitioner himself would not be available to look
after the child in the way a child of that age requires to be
looked after. Thirdly, though this was supplementary to the second
point, it was not clear that the child’s essential needs in
relation to feeding and cleanliness could be looked after by any
person in the household with experience of these matters. I should
note that among the documents placed before me there is an
affidavit by the petitioner. Articles 7, 8, 9 and 12 of that
affidavit bear upon the same matters. However, there is no way in
which I am able at this stage to ascertain the precise
circumstances in which the child would be brought up. I do not
think that I am entitled to accept one version, for example that
in the affidavit, as against the other, namely that presented to
me on behalf of the respondent by Mr Francis. It appears to me
that, at this stage, I should consider, in the first place,
whether or not proof of the matters which Mr Francis set before me
would be sufficient to enable him to establish the existence of a
“grave risk” of the kind referred to in Article 13(b). If the
circumstances averred were relevant to support a charge of “grave
risk” I should then have to consider how the risk might be
“established”. As to the first of the three considerations
referred to above, it appears to me to be quite unstateable to
suggest that simply because one grand-parent who might have some
part in looking after the child speaks no English the child is
therefore exposed to “an intolerable situation”. Of course the
ill-health of a grand-parent who was to be the sole custodian
might well be a relevant matter. But there was no evidence placed
before me and no submission that there existed any such evidence
to suggest that the arrangements of the kind spoken to by the
petitioner in the affidavit would not apply. He refers to his
mother as being available to assist in looking after the child and
he also refers to the possibility of obtaining other assistance.
Mr Francis, even with his client’s assistance, could not
contradict these assertions in the affidavit. The second matter,
relating to the petitioner’s hours of work, is a matter of a very
general kind. Obviously any working father could face the same
claim namely, that the fact of his going to work prevented him
from devoting his full time and attention to the care of the
child. But again that does not seem to me to be a consideration
which points to the existence of “grave risk” of exposure to an
intolerable situation, or to psychological harm. The third matter,
in relation to the ordinary care of the young child, appears to me
to be entirely trivial, especially given the uncontradicted terms
of the affidavit. Plainly it would not be difficult to make
appropriate arrangements for the care of a child of that age.

In my opinion, even if I were to allow some form of further
enquiry, whether by way of proof or by reference to affidavits, in
support of the submissions made by Mr Francis there is no
reasonable likelihood that any such enquiry would establish the
existence of a grave risk of the kind contemplated by Article 13.
To put the matter another way I consider that the “prima facie
case” advanced by Mr Francis is irrelevant.

In most cases that come before this Court involving a dispute
between parents as to custody of a child the over-riding and
paramount consideration is the welfare of the child. In this type
of case under the 1985 Act the Court is not enjoined to conduct a
enquiry into that matter. The matter before this Court is
restricted to determining whether or not he party opposing the
return of the child establishes the existence of a grave risk of
the kind specified. I should add in the same connection that it is
plain from the papers before me that a Court of competent
jurisdiction in Ontario is already considering the case and has
made an interim order granting custody to the petitioner. If the
question of the welfare of the child has to be litigated it would
appear that that would be the appropriate Court to deal with that
matter. No doubt in some circumstances such a matter could be
raised before the Court in Scotland in respect of a child who was
physically in Scotland; but no attempt has been made by or on
behalf of the respondent to raise the matter of custody in a
petition for custody or other legal proceedings in Scotland. I
therefore consider that my remit in the matter is that defined by
the precise terms of Articles 12 and 13.

In the whole circumstances 1 hold that the child who is the
subJect of this petition has been wrongfully removed from Ontario,
Canada, a contracting state within the meaning of the Convention.
I hold that it has not been established that any grave risk of the
character contemplated by Article 13 has been established or can
be established on the basis of the averments made in the motion
roll before me. In these circumstances I consider that I have no
option but to order the return of the child forthwith. I shall
accordingly make such an order.

As to the form of that order, I raised with parties the
possibility that the case might be continued for a few days in
order to allow the petitioner to make appropriate arrangements to
collect the child or otherwise to have the child returned to
Canada. However, on reflection, I have come to be of the view that
my order should simply be in terms of Article 12(1) for the return
of the child forthwith. In the interlocutor I shall follow the
wording of the latter part of the crave of the petition and make
the usual provision as to what is to happen in the event of the
respondent’s failing to deliver up the child forthwith. In
response to my raising the question of the form of the order, Mr
Brailsford said that he understood that the petitioner is likely
to come to Scotland. Indeed that is what the petitioner narrates
in Article 6 of the petition. Accordingly, parties will no doubt
understand that the order to deliver forthwith, supplemented by
granting a warrant to messenger-at-arms and Sheriff Officers
should be interpreted as meaning that the respondent must deliver
the child to the petitioner as soon as the petitioner arrives in
Scotland and is able to arrange for the return of the child to