UK – ZENEL VE HADDOW – 1993 (Return Denied) (Consent) ZENEL v HADDOW. The mother took the child to Scotland. The father applies for the return under the convention. The mother and father were not married. The lower court ruled that the father had consented to the mother and child’s return to Scotland if things did not work out. The decision of the court of First instance was upheld on appeal.
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UK – ZENEL VE HADDOW – 1993 (1993) (Return Denied) (Consent) ZENEL v HADDOW. The mother took the child to Scotland. The father applies for the return under the convention. The mother and father were not married. The lower court ruled that the father had consented to the mother and child’s return to Scotland if things did not work out. The decision of the court of First instance was upheld on appeal.
Zenel v. Haddow1993 S.L.T. 975 (Scot. 1st Div.)
5 International Abduction [UK 1993]
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Zenel
v
Haddow
FIRST DIVISION
LORDS ALLANBRIDGE, MAYFIELD AND MORTON OF SHUNA
20 Jul 1993
On 25 March 1993 the Lord Ordinary dismissed the petition.
<* page 977>
LORD MARNOCH
001 This is an application for an order for the return of
a child said to have been wrongfully removed from Australia
by her mother, the respondent. The petitioner is the father
of the child. While the parties have at no time been
married, it is accepted by both that, under the relevant
Australian law, they each shared joint custody of the child
in question. As one might expect, the relevant legal
provisions are to be found in the Convention on the Civil
Aspects of International Child Abduction as incorporated
into UK law by the Child Abduction and Custody Act 1985.
002 In her answers to the petition, the respondent
averred that there was a “grave risk” that the return of the
child to Australia would expose her to “physical or
psychological harm or otherwIse place he child in an
intolerable situation within the meaning of art 13 (b) of
the Convention. In the course of the hearing, however, it
was accepted that, provided a reasonable time was allowed to
enable the respondent to return to Australia along with the
child, this ground of opposition could no longer be
maintained. The was particularly so in view of the
petitioner’s undertaking that the respondent and the child
would be allowed the free and exclusive occupancy of the
house in which the parties formerly resided pending the
outcome of custody proceedings in Victoria. In the result,
counsel far the respondent agreed to drop this ground of
opposition, provided extract of any order for return of the
child was superseded for a period of 14 days.
003 This, however, is by no means an end of the matter,
because the respondent raises as a preliminary issue the
question whether the child was “habitually resident” in
Australia immediately prior to its removal from that country
within the meaning of art 3 of the Convention. Further,
even if the child were so resident, it is submitted that in
the particular circumstances of the present case the
petitioner “consented” to the removal within the meaning of
art 13(a) of the Convention. Before dealing with these
matters it is necessary to set out the salient facts which
the legal issues must be determined.
004 Happily, most of the facts era not in dispute and can
be summarised as follows.
005 The respondent is Scottish and went to Australia on a
12 month working holiday towards the end of 1987. She met
the petitioner in December 1987 and formed a relationship
with him. The petitioner is an Australian national and the
parties lived together for about two years until separating
in November 1990. A formal separation agreement was then
entered into and has been lodged as 16/1 of process. In
terms of that agreement the respondent made over to the
petitioner her share of the house formerly occupied by them.
Subsequently, when some six months pregnant, the respondent
returned to Scotland in March 1991. At that state, however,
there was further communication between the parties in the
course of which the respondent wrote the letter of 14 April
1991 (13/7 of process). In that letter the respondent wrote
inter alia that she could not wait to see the petitioner,
that she hoped they could “get along good” and that she was
“looking forward to getting back to Australia as a family”.
The petitioner later came over to Scotland for the birth of
the child, which occurred on 27 June 1991. Following the
birth the petitioner was registered as father of the child
and an Australian passport was obtained for her. The
petitioner then returned to Australia, via America, and some
does later he was joined by the respondent and the child who
landed in Australia on or about 1 September 1991.
Thereafter the parties resided together for a period of some
15 months until, on or about 27 November 1992, the
respondent, having told the petitioner that she was going to
spend the weekend with relatives, instead boarded an
aeroplane and, together with the child, again returned to
Scotland. About a week previously, however, the petitioner
had consulted a solicitor in Melbourne and had been advised,
rightly or wrongly – but in any event without reference to
the Convention – that there was nothing to prevent her
taking the child to Scotland. During the 15 month period of
cohabitation to which I have referred it is not, I think,
disputed that the relationship between the parties was an
uneven one and, in any event, there is clear affidavit
evidence to the effect that latterly the respondent became
most unhappy. She herself maintains that the relationship
between the parties was never satisfactory during that
period. Nonetheless, it is the case that, fairly soon after
they returned to Australia, the parties purchased a new
kitchen and that, at a much later stage, they actively
considered selling the house in which they then resided and
moving to more spacious accommodation. In addition, in
March 1992, the respondent herself obtained temporary
employment and, in June 1992, she took up full time
employment as a personnel assistant. In her affidavit, no
16/4 of process (para 11), the respondent explains that she
had begun thinking seriously about returning to Scotland in
about July 1992 and that she “finally decided definitely to
do so” a day or two prior to her actual departure at the end
of November 1992.
006 All that said, there remains one important area of
dispute between the parties and that relates to the
understanding which had been reached between them prior to
the respondent’s return to Australia in September 1991.
According to his affidavits (nos 13/1 and 18/1 of process)
the petitioner “emphatically denies” that there was any
understanding that, if the parties’ relationship did not
work out, the respondent would return to Scotland along with
the child. Indeed, in the later affidavit, he denies that
that question was even
<* page 978>
raised and states that the parties long term plans were
simply “not consistent” with any such arrangement. The
respondent, on the other hand, maintains that her return to
Australia was part of an attempted reconciliation and that
it was discussed and agreed in terms that, if things did not
work out, both she and the child would come back to
Scotland. Needles to say, I have not found it all easy to
resolve this factual dispute on the basis, solely, of
affidavit evidence. However, that, realistically, is the
best evidence which in fairness to both parties, can be made
available in the circumstances. Counsel for the petitioner
pointed out that the account given of this matter had been
embellished in sufficient affidavits taken from the
respondent. This is true enough, but I attache little
importance to that fact bearing in mind that, in her 1rst
affidavit (no 15/1 of process) the respondent does not refer
to having had a “talk” with the petitioner when it was
agreed that “we would attempt a reconciliation” (my
italics), and that in her later affidavit (no 16/4 of
process) it is explained that the parties had talked about
this “a great deal” before final agreement was reached.
More importantly, however, there is no reference to this
matter in either the first affidavit from the respondent’s
mother (no 16/8 of process) or the letter from the solicitor
whom the respondent consulted in Melbourne (no 12/4 of
process), or, indeed, in the letter which she wrote to the
petitioner at the time of her return to Scotland (no 18/2 of
process). Moreover, as counsel for the petitioner again
pointed out, according to para 7 of the respondent’s own
affidavit (no 12/1 and 12/9 of process). There are also the
circumstantial considerations that the respondent was at no
time married to the petitioner and that, having made over
her share in the house to the petitioner in accordance with
the earlier separation agreement, the respondent had not
obvious form of long term security in Australia at the time
she agreed to return there. Indeed, according to counsel
for the petitioner’s information, the respondent, on her
return, was wholly dependent on social security benefits.
It seems to me that in these circumstances it would be very
surprising if, in Scotland, there was absolutely no
discussion of the possibility that the respondent might
again decide to come back and live with her mother.
Moreover, I discount as being, in my view, unrealistic
counsel’s submission that any agreement or understanding
would most likely have been “formalised” in writing. In the
result, and doing the best I can on the evidence available,
I find as a fact that when the respondent returned to
Australia in September 1991 she did so as part of an
attempted reconciliation with the petitioner and on the
express understanding that, if the relationship again
failed, she and the child would return and live with her
mother in Scotland. It may well be that this has been
forgotten after 15 months in Australia or that, in the early
stages of the trauma of separation, the respondent still saw
for herself a possible future in Australia. In any event,
there is no reason to suppose that she would have regarded
the understanding as having any binding quality or legal
significance. But, whatsoever the precise position, I do
not think it likely that the respondent would simply have
invented this account of events, let alone have arranged for
two of her friends to substantiate it.
007 I should add that, in making these findings, I leave
out of account the affidavits lodged on behalf of the
respondent on the third day of the hearing (nos 19/1-4 of
process), since I agree with counsel for the petitioner that
in the circumstances there should be some doubt as to their
spontaneity and reliability. If, however, account were to
be taken of these affidavits, then, with one proviso, the
argument for the respondent would become that much stronger.
The proviso is that, if it be the case that in late November
992 the matter of the agreement or understanding was
foremost in the mind of the respondent, as is deponed to by
the respondent’s mother, Angela Mellerick and Anna
Papadopoulos in their affidavits, nos 19/1, 3 and 4 of
process, it is then difficult to understand why there was no
mention of it in the letter written to the petitioner by the
respondent at the time of her departure (no 18/2 of
process). One possible explanation, however, is that in any
communication with the petitioner the respondent regarded
mention of the understanding as being somewhat academic in
view of his apparent disregard of its validity and/or
importance; see in this connection the respondent’s
affidavits no 15/1 of process, para 7 and no 16/4 of
process, para 9, and the affidavits, supra, nos 19/1 and
19/3 of process.
008 In light of the above I now turn to consider, first,
the issue of “habitual residence”. On that matter there was
no real dispute between the parties as to the most relevant
authorities. In chronological order these were Dickson v
Dickson, Re J (A Minor), Re S (A Minor) and Re A PA Minor).
The first of these was a decision of the Inner House and, in
the course of delivering the opinion of the court, the Lord
President said this (1990 SCLR at p 703B): “It is enough to
say that in our opinion a habitual residence is one which is
being enjoyed voluntarily for the time being and with the
settled intention that it should continue for some time.
The concept is the same for all practical purposes as that
of ordinary residence as described by Lord Scarman in R. v
Barnet London Borough Council, ex parte Shah at pp. 342 and
343. A person can, we think, have only one habitual
residence at any one time and in the case of a child, who
can form no intention of his own, it is the residence which
is chosen for him by his parents. If they are living
together with him, then they will all have their habitual
residence in the same place. When the parents separate, as
they did in this case, the child’s habitual residence cannot
be changed by one parent only unless the other consents to
this change.”
009 Re J (A Minor) was a case which went to the House of
Lords and, in a speech concurred in by all the other members
of the Judicial Committee, Lord Brandon of Oakbrook had this
to say ([1990] 3 WLR at p 504):
<* page 979>
010 “The first point is that the expression ‘habitually
resident’, as used in article 3 of the Convention, is
nowhere defined. It follows, I think, that the expression is
not to be treated as a term of art with some special
meaning, but is rather to be understood according to the
ordinary and natural meaning of the two words which It
contains. The second point is that the question whether a
person is or is not habitually resident in a specified
country is a question of fact to be decided by reference to
all the circumstances of any particular case. The third
point is that there is a significant difference between a
person ceasing no be habitually resident in country A, and
his subsequently becoming habitually resident in country B.
A person may cease to he habitually resident in country A in
a single day if he or she leaves it with a settled intention
not to return to it but to take up long-term residence in
country B instead. Such a person cannot, however, become
habitually resident in country B in a single day. An
appreciable period of time and a settled intention will be
necessary to enable him or her to become so. During that
appreciable period of time the person will have ceased to be
habitually resident in country A but not yet have become
habitually resident in country B. The fourth point is that,
where a child of J.’s age is in the sole lawful custody of
the mother, his situation with regard to habitual residence
will necessarily be the same as hers.”
011 In the third of the cases cited the facts are fairly
complicated but it is to be observed that, in the course of
giving the judgment of the Court of Appeal, Purchas LJ
commented, first, that a period of 12 months was “more than
a sufficiently substantial period of time to effect the
transfer of habitual residence” and, secondly, that he did
not consider as appropriate in the interpretation of the
Convention any analogies with the concept of domicile of
origin or domicile of choice.
012 Lastly, in Re A P (A Minor) it was held by the Court
of Appeal that, with a settled intention no emigrate to
Australia, three months was sufficient for a child to
acquire a “habitual residence” there. Moreover, the comment
was made that in such a situation even a month could be an
appreciable period of time and that, in general, the court
should not strain to find a lack of habitual residence where
“on a broad canvas” the child bad settled in a particular
country.
013 From the foregoing authorities it is, I think, clear
that the intention of a person is an important aspect in
deciding his or her “habitual residence” for purposes of the
Convention and, against that background, counsel for the
respondent submitted that on his client’s account of events,
which I have accepted, there never was any “settled
intention” that either she or the child should remain in
Australia. Accordingly neither could be said to have become
“habitually resident” there. With some hesitation, I have
decided to reject that submission. It seems to me that,
while intention is undoubtedly a very important
consideration, there must come a stage when the objective
facts point unequivocally to a person’s ordinary or habitual
residence being in a particular place. In the present case
the parties bad lived together in Australia continuously for
15 months, bad installed a new kitchen and had considered
moving house elsewhere in the state of Victoria. In
addition, the respondent had herself obtained full time
employment some five months prior to her departure from the
country. In all these circumstances I do not consider it
realistic to regard the “habitual residence” of the
respondent, as of November 1992, as being other there in
Australia. Happily, the conclusion which I have reached on
this matter avoids what might otherwise have been a
difficult, although interesting, question, namely the
ascertainment of of a child’s “habitual residence”, if any,
in a situation where his parents, albeit living together,
did not share the same “habitual residence” for purposes of
the Convention. In this connection, however, I note that in
R v Barnet London Borough Council ex parte Shah [1983] 2 AC
at pp 343-344 – being in part, at least, the* passage cited
with approval by the Inner House in Dickson v Dickson – Lord
Scarman recognises that there can be ordinary or habitual
residence for a period limited by the immediate purpose
(e.g. education, family or employment) for which it is taken
up. If, therefore, that line of reasoning is applied to the
present case, it is possible – and this was suggested by
counsel for the petitioner – that a trial period of
reconciliation might itself be seen as a purpose sufficient
to found “habitual residence” within the meaning of the
Convention.
014 I turn lastly, then, to the matter of “consent” and,
in so doing, I would accept at he outset that, here again,
there must be some limit to how far an agreement or
understanding of the type in question should remain binding
on the parties to it. In short, there must surely come a
stage when for all practical purposes the parties can be
seen as having become wholly reconciled and to have embraced
a new life together. The question is whether that stage was
reached in the present case. Again, with some hesitation,
but doing the best I can with the available evidence, I have
reached the view that that particular question falls to be
answered in the negative. In his affidavit (no 11/1 of
process), the petitioner himself accepts that the parties
had “heated arguments” from time to time and, as I have
already remarked, it is clear that latterly the relationship
between the parties became a most unhappy one. The picture
is accordingly one of a deteriorating, rather than an
improving, relationship, and it can accordingly have come as
no surprise to the petitioner when the respondent finally
announced that she was leaving him. In these circumstances,
and in light of my finding as to the clear understanding
reached between the parties in Scotland some 15 months
previously, I do not think that the petitioner has any
ground for complaint that the respondent and child returned
to Scotland when they did. Viewing masters in than light,
therefore, I am prepared to hold that the petitioner, both
in form and substance, “consented” to their doing so within
the meaning of art 13 (a) of the Convention in question. In
this connection, it Is I think, nothing to the point that at
the
<* page 980>
time of their departure the agreement or understanding had
been overlooked, ignored, or even forgotten by either or
both of the parties. Once it be accepted that such an
agreement or understanding was entered into, and was in the
circumstances still extant, then it seems to me that this
application must be refused. In all the above
circumstances, therefore, I shall sustain the respondent’s
fourth plea in law (as added by amendment) to that effect.
The petitioner reclaimed
Reclaiming motion
015 The reclaiming motion was heard before the First
Division on 8 and 9 July 1993.
016 On 20 July 1993 the court refused the reclaiming
motion.
LORD ALLANBRIDGE.
017 On 25 March 1993 the Lord Ordinary dismissed a
petition which had been presented to this court by the
reclaimer. The petition was presented under Pt I of the
Child Adoption and Custody Act 1985 for return of the child
who had been removed from Australia at about the end of
November 1993. The petitioner and the respondent bed formed
a relationship in about December 1987 and there is one
female child of the relationship born on 27 June 1991.
018 As is outlined by the Lord Ordinary, most of the
facts are not in dispute and are helpfully summarised by him
in his option of 25 March 1993. The respondent is a Scot
and went to Australia on a 12 month working holiday towards
the end of 1987. She met she petitioner in December 1987
and formed a relationship with him. The petitioner is an
Australian national and the parties lived together for
nearly two years until separating in November 1990. A formal
separation agreement was then entered into in terms of which
the respondent made over to the petitioner her share of the
house formally occupied by them and he paid her a certain
sum in exchange. Subsequently, when she was about six
months pregnant, the respondent returned to Scotland March
1991.
019 There were then further communications between the
parties in the course of which the respondent wrote a
latter, dated 14 Apr11 1991 in which she stated that she had
been really missing the petitioner, could not wait to see
him, and was “looking forward to getting buck to Australia
as a family”. The petitioner came to Scotland for the birth
of the child which occurred on 27 June 1991. FollowIng the
birth the petitioner was registered as the father of the
child and an Australian passport was obtained for the child.
020 The petitioner then returned to Australia, via
America, and some days later he was joined by the respondent
and the child who arrived there about 1 September 1991.
Thereafter the parties lived together for a period of about
15 months until about 27 November 1992. The respondent,
having told the petitioner that she was going to spend the
weekend with relatives, instead boarded an aeroplane and,
together with the child, returned to Scotland. About a week
previously, the respondent bad consulted a solicitor in
Melbourne and had been advised, without any reference being
made by the solicitor to the Convention on the Civil Aspects
of International Child Abduction (see Sched I to the 1985
Act that she had the option of returning to Scotland and
immediately applying for a sole custody order through the
ScottIsh courts (See Melbourne solicitor’s letter, dated 5
February 1993).
021 During the parties’ 15 month period of cohabitation
between September 1991 and November 1992, the Lord Ordinary
said he considered that the relationship between them was an
uneven one and, in any event, there was clear affidavit
evidence to the effect that latterly the respondent had
become most unhappy. In her affidavits the respondent
maintained that the relationship between the parties was
never satisfactory. Nevertheless, the Lord Ordinary accepts
that fairly soon after they returned to Australia, the
parties purchased a new kitchen and that, at a much later
stage they actively considered selling the house in which
they then resided and moving to more spacious accommodation.
In addition, in March 1992, the respondent herself obtained
temporary employment and, in June 1992, she took up full
time employment as a personnel assistant. In her affidavit
(no 16/4 of process) the respondent stated she had begun to
think seriously about returning to Scotland in about July
1992 and finally decided definitely to do so a day or two
prior so her departure at the end of November 1992.
021 At this stage of his opinion the Lord Ordinary then
explains there was one important area of dispute between the
parties which related to an understanding said by the
respondent to have been reached between the parties prior to
her return to Australia in September 1991. The petitioner
denied that there was any such understanding, and the
dispute as to whether it was established in evidence and, if
so, what effect, if any, it had on the proper interpretation
of the parties’ rights under art 13 of the Convention, lies
as the heart of this reclaiming motion. In his opinion, the
Lord Ordinary explains that after considering the available
evidence he found as a fact (p 975R supra) “that when the
respondent returned to Australia in September 1991 she did
so as part of an attempted reconciliation with the
petitioner and, on the express understanding that, if the
relationship again failed she and the child would return to
live with her mother in Scotland”.
022 This understanding, if established in evidence,
requires to be considered against the background of the
statutory provisions contained in arts 3, 12 and 13 of the
Convention. Three matters were originally the subject of
dispute between the parties at the hearing before the Lord
Ordinary. In the first place it had been averted in the
respondent’s answers that there was a grave risk that the
return of the child to Australia would expose her to
physical or psychological harm in
<* page 981>
terms of art 13 (b), but during the course of the hearing it
was accepted by the respondent that this ground of
opposition could no longer be maintained after the
petitioner had given an undertaking that the respondent and
the child would be allowed the free and exclusive occupancy
of the house in which the parties formerly resided pending
the outcome of custody proceedings in Victoria. In the
second place the respondent raised as a preliminary issue
the question whether the child was “habitually resident” in
Australia prior to her removal from that country within the
meaning of art 3. That matter was decided in favour of the
petitioner by the Lord Ordinary who held that the respondent
and therefore the child, was so resident in Australia, and
the respondent has not reclaimed against that part of his
decision.
023 In the third place the Lord Ordinary said there was a
dispute between the parties as to whether the petitioner had
consented to the removal of the child in terms of art 13(a).
The Lord Ordinary decided this dispute in favour of the
respondent and sustained the respondent’s fourth plea in law
to the effect that the petitioner had consented to the
removal of the child from Australia, the prayer of the
petition should be refused. The debate before us was solely
concerned with the question of whether the Lord Ordinary had
been entitled to sustain the respondent’s said fourth plea
in law.
024 The submissions put forward by counsel on behalf of
the petitioner fell broadly into two main categories. In
the first place she argued that the Lord Ordinary had erred
in law in his interpretation of the proper meaning of art
13(a) as regards the petitioner’s alleged consent to the
removal of the child from Australia. In the second place she
argued that in findIng that there had been a prior agreement
between the parties on this matter, the Lord Ordinary had
erred in holding any agreement in September 1991 established
by the evidence and furthermore, even if it was established,
he had erred in finding that it was still extant at the time
of the actual removal of the child in about November 1992, I
think it is convenient to consider first whether the Lord
Ordinary erred in arriving at his factual conclusions before
deciding whether he erred in Law in his interpretation of
the provisions of art13(a),
025 At the beginning of her submissions counsel for the
petitioner said she founded very strongly on the fact that
when the petition and answer came before the Lord Ordinary
on the first day of the hearing on 18 March 1993 no question
had been raised in the pleading as to whether or not the
petitioner had consented to the removal of the child. In
fact the respondent had admitted in her original answer that
she had removed the child without the petitioner’s consent.
The question of consent was raised by the Lord Ordinary
himself on the first day of the hearing. After some
discussion between him and counsel for the parties, counsel
then acting on behalf of the respondent asked for an
adjournment to consider his position as regards amending his
pleadings regarding the matter of consent. It was not
disputed by counsel who appeared for the respondent before
us that the Lord Ordinary had initiated this matter and,
having had the opportunity of looking as the minutes of
proceedings, I note that on the following day the
appropriate minute of amendment for the respondent was
allowed subject to the condition that the petitioner, if so
advised, could lodge further affidavits by 10 ten on
Tuesday, 23 March 1993, which was the third day of the four
day hearing. On that day counsel for the petitioner lodged
a further affidavit from the petitioner, dated 22 March
1993, in which he emphatically denied any suggestion of an
agreement between the respondent end himself that she could
take the child beck so Scotland. Counsel than acting for the
respondent lodged four new affidavits. Three of these
affidavits were further affidavits from the respondent’s
mother and two of her friends in Australia, Angela Mellerick
and Anna Papadopoulos, which were dated 22 or 23 March 1993
respectively, and an affidavit from a friend of the
respondent’s family in Scotland, Robert Kenneth Young Sharp,
dated 22 March 1993. In his opinion the Lord Ordinary
indicates that he took into account in reaching his decision
on the facts the most recent affidavit of the petitioner,
but left out of account these four affidavits lodged oat
behalf of the respondent on the third day of the bearing
because he agreed with counsel for the petitioner that in
the circumstances there could be some doubt as to their
spontaneity and reliability (p 978 G-H, supra).
025 Counsel for the petitioner made no attack on, or
complaint about, the procedure adopted by the Lord Ordinary
in this case and I am satisfied that it was reasonable in
the circumstances of such a hearing which proceeded on
affidavit evidence alone. However, I have noted her point
that the question of consent was initiated by the Lord
Ordinary in this case. I have also noted that at the time
he did so he had two affidavits of the respondent before him
which made reference to a discussion and an agreement
between the parties before the respondent’s return to
Australia (see no 15/1 of process, dated 11 February 1993,
and no 12/2 of process dated 17 February 1993).
026 Counsel for the petitioner made a detailed and
careful analysis of the affidavit evidence in this case in
her submissIons to us. She stated that because this court
could look at the affidavits and the other documentary
evidence in the same way as the Lord Ordinary bad done then
this court could equally well assess the credibility of the
parties and their witnesses. I do not accept that such an
approach is open to this court. It is for the judge at the
hearing on the affidavit evidence to assess the weight and
effect of that evidence and this court can only disturb his
findings in fact if it is satisfied that the Lord Ordinary
was so plainly wrong that his conclusion on the facts was
one at which no reasonable Lord Ordinary could have arrived.
Council for the petitioner did not dispute that she required
to meet such a test but submitted that she could do so in
the circumstances of this case.
027 I do not find it necessary to detail all the
submissions that counsel made in her attack on the
credibility of the petitioner’s witnesses. I can however
quote
<* page 982>
some examples which she quite properly put before the Lord
Ordinary and again put before this court. She pointed out
that the Lord Ordinary stated (at p 978D, supra) that the
respondent got clear support for her account of the events
in the affidavits of Fiona Macfarlane and Angela Mellerick
but that the respondent had, in one of her letters,
described Angella as a person who tends to talk “garbage and
tell me so say and do things that I wouldn’t think about”.
Furthermore, counsel for the petitioner said that Fiona
Macfarlane could hardly he said to support the respondent on
the question of the existence of an agreement because all
she said was that when the respondent went to Australia to
attempt a reconciliation “there was no doubt In my mind that
Rhona intended to come home to Scotland with Brianne if the
reconciliation did not work”. Counsel also attacked the
credibility of Anna Papadopoulos because in her first
affidavit she said she first met the respondent in June 1992
whereas in her second affidavit she referred to what the
respondent had told her in October 1991 when they were
visiting a food shop together. Counsel then said that the
fact that these witnesses were unreliable as demonstrated by
the affidavits, reflected on the credibility of the
respondent herself as they were her friends.
028 I have considered all the criticisms of counsel for
the petitioner regarding the witnesses and her other
comments on the evidence, but I consider these ware all
matters for the Lord Ordinary to take into account and I am
not persuaded that he failed to do so. A close raiding of
his opinion demonstrates he carefully considered all these
matters of credibility, and counsel for the petitioner very
properly accepted that, in view of the terms of s1 of the
Civil Evidence (Scotland) Act 1988, the Lord Ordinary did
not require to find corroboration of the respondent’s
evidence before he could accept her evidence alone as proof
of the alleged agreement.
029 There were two further main submissions by counsel
for the petitioner on the evidence. She submitted that it
was inconsistent for the Lord Ordinary to find the
respondent was “habitually resident” in Australia and at the
same time to find that by November 1992 there had not been a
reconciliation. The Lord Ordinary had reviewed the facts
having regard to the relevant case law as to what is
required to establish habitual residence (pp 978J-979G,
supra) and reached the conclusion that in November 1992 the
respondent was habitually resident in Australia as of that
date. He explains that in the present case the parties had
lived together in Australia continuously for 15 months, had
installed a new kitchen and bad considered moving house
elsewhere in the State of Victoria. In addition, the
respondent had herself obtained full time employment some
five months prior to her departure from the country. As
explained by Lord President Hope at p 703B of Dickson v
Dickson; “It is enough to say that in our opinion a habitual
residence is one which is being enjoyed voluntarily for the
time being and with the settled intention that it shall
continue for some time.”
030 In the later case of Re F (A Minor) (Child Abduction)
[1992], 1 FLR at p 555G, Butler-Sloss LJ considered that
residence of a period of only a month could be a sufficient
period of time in which to acquire the necessary settled
intention. In such a situation I consider the fact that the
court has found the necessary settled intent established as
regards the respondent, does not preclude her from
maintaining that a reconciliation had not then taken place.
031 However, I find it more difficult to answer the
related but separate question raised in this case as to
whether the particular alleged agreement was still extant at
the time the respondent left Australia with the child in
November 1992. The Lord Ordinary said in his opinion (pp
979L-98OA4, supra) that it did not matter that at the time
of the departure the agreement or understanding had been
overlooked, ignored, or even forgotten by either or both
parties. At first sight I found this to be a somewhat
surprising suggestion that, of at the time she left
Australia the respondent was not doing so in reliance on the
agreement, she could still rely on it when she returned to
Scotland. It may well be as suggested by the Lord Ordinary,
that both parties had forgotten of the existence of the
agreement at the time she left Australia. But on reflection
I have come to be of the view that whether the agreement was
extant and in force when the respondent left Australia, must
be a question of fact to be determined by the judge at the
hearing. There is no doubt that he was well aware of he
difficulties arising in this particular case and the facts
relating to it. He stated that he accepted at the outset
that there must be some limit to how far an agreement or
understanding of the type in question should remain binding
on the parties to it and that, in short, there must surely
come a stage when for all practical purposes the parties can
be seen as having become wholly reconciled and to have
embraced a new life together (p 979J, supra). That in my
opinion is the correct approach and when he said the
question was whether that stage had been reached in the
present case, be posed the correct question. He answered
that question, with some hesitation but after a careful
review of the facts, in the negative. Had I been answering
the question myself I might not necessarily have reached the
same conclusion, but I am satisfied that it cannot be said
in this case that the Lord Ordinary as the Judge of first
instance was not entitled to reach the conclusion that he
did. Is was a matter of fact for him to determine and
nothing has been said by counsel for the petitioner that
persuades me that the Lord Ordinary was so plainly wrong
that this court is entitled to interfere with his decision
on this matter.
032 I am therefore satisfied that the Lord Ordinary was
entitled to find that the agreement, which I have already
quoted either in this opinion, was made between tb parties
before the respondent returned to in September 1991 and that
it remained in force until November 1992 when the respondent
took the child away from Australia. Once it was established
that such an agreement was made, then whilst it remained in
existence the respondent was entitled to remove the child
from Australia without seeking the
<* page 983>
permission of the petitioner to do so. He had already given
his consent to happening of that event whenever it might
occur, provided always that the agreement had not come to an
end by virtue of the fact that a reconciliation had taken
place.
033 The question remains as to whether she Lord Ordinary
erred in law in the interpretation of art 13(a) of the
Convention. It is true as argued by counsel for the
respondent, that the only question in the grounds of appeal
which deals with an alleged error in law by the Judge is the
first ground of appeal and it failed to raise any question
regarding the proper interpretation of art 13(a) and when
reed appears to relate to a matter of fact. That ground
states that the error in law by the Lord Ordinary was that
he had held there existed, at the data of removal of the
child, an agreement between the parties about removal. I
accept at once that there is considerable force in what was
said on this matter by counsel, but I am prepared to
entertain the somewhat different question argued by counsel
for the petitioner for a number of reasons. She was
permitted by this court to present her argument without
objection and as this matter was canvassed by her on the
first day of the appeal and as counsel for the respondent
did nor address the court until the following day, he could
not and did not argue that he was taken by surprise and thus
prejudiced by receiving noon proper notice of it.
Furthermore, counsel for the petitioner insisted that such
an argument was presented to the Lord Ordinary, albeit his
opinion is silent on this topic.
034 ArtIcle 13(a) must be considered in its context in
the Convention. There was no dispute between the parties
before us that the removal of the child had been wrongful in
terms of art 3 and that, but for the saving provisions of
art 13, the court In Scotland would have required to order
the return of the child in terms of art 12. Article 13(a)
reads as follows: (his Lordship quoted the terms of art 13
set out supra and continued:)
035 The argument of counsel for the petitioner was to the
effect that the respondent, who was the person who opposed.
the return of the child, required to establish that the
petitioner, who was the person baying the care of the child
(by virtue at joint custody according to Australian law)
“had consented to the removal”. The use of the word “the”
before the word “removal”, according to counsel for the
petitioner, meant that consent must have been given by the
petitioner to the particular removal in question which
presupposed knowledge on the part of the petitioner of the
actual removal at the time so that he could give the
necessary consent. Counsel said that this was clandestine
removal by the respondent and she never told the petitioner
that she was removing the child in terms of the alleged
agreement. Counsel for the petitioner seemed to accept a
suggestion made to her from the bench that, if the
respondent had wished to exercise such rights in terms of
the agreement, she should have gone to the Australian courts
which were responsible for matters of custody in Australia,
and obtained their agreement to removal of the child, but I
consider there is nothing in the wording of art 13(a) which
required that to be done.
036 I have considered closely the terms of art 13(a) but
can find no support for counsel for the petitioner’s
suggested interpretation of it. The words “at the time of
the removal” plainly relate to and qualify the preceding
words “not actually exercising the custody rights”. The use
of the ward “the” before the word “removal” must mean the
actual removal which took place but it does not follow that
the consent must be given instantaneously at the time
because consent could clearly be given to a removal which
would take place at a future and even indefinite date. A
person could agree that a child could be removed, for
example, when the child came out of hospital and was fit
enough to travel. There would be no definite date but
consent was being given for a future removal. The use of
the past tense in the words “had consented to . . . the
removal” demonstrates that at the time of removal the
consent had already been given and looks to the past prior
to the removal. In other words a person could consent to
the removal of a child in the future unless some other event
occurred, such as she child not being well enough to travel.
The present case is analogous to such an example because the
agreement found established by the Lord Ordinary was to the
effect that the petitioner would consent to the return of
the child to Scotland unless the parties bad become
reconciled. That consent, given in September 1991 by
agreement between the parties, remained in force as a matter
of fact in November 1992, as found by the Lord Ordinary. In
my opinion that situation, once accepted, clearly satisfies
the requirements of the wording in art 13(a).
037 It was finally submitted by counsel for the
petitioner that the result of upholding the Lord Ordinary’s
decision in this case would be to give an opportunity to any
person who abducted a child to set up an alleged prior
agreement regarding consent and thus defeat the whole
purpose of the Convention. That, in my opinion, is not the
proper approach. The clear intention of the qualification
regarding consent in art 13(a) is to give the person
removing the child the opportunity to prove that the removal
of the child was with the consent of the “person,
institution or other body having the care of the person of
the child”. If such an opportunity is taken and the
relevant consent is established, then the judicial authority
of the requested state is not bound to order the return of
the child as stated in terms of art 13 of the Convention.
The existence of such consent was proved to the satisfaction
of the Lord Ordinary in the circumstances of this particular
case and I can find nothing in the wording of art 13(a) to
prevent him reaching the conclusion that he did. I am
therefore satisfied this he did not err in law and that the
terms of para (a), properly construed, did not prevent him
from finding consent proved and therefore holding that he
was “not bound to order the return of the child” and in the
circumstances deciding not to do so.
038 For these reasons I consider that the issues that are
decisive in this particular case are issues of fact. The
Lord Ordinary was entitled to accept the affidavit
<* page 984>
evidence led on behalf of the respondent and reject that led
on behalf the petitioner where matters relevant to consent
were in dispute. In my opinion this reclaiming motion
therefore falls and I would refuse the appeal and adhere to
the Lord Ordinary’s interlocutor of 25 March 1993.
039 I have had the advantage of reading the draft the
opinion of Lord Morton of Shuna. At the end of his opinion
he expresses the view that the court should act
expeditiously in proceedings for the return of children. I
agree with that view. As was stared by Lord President Hope
at p 7O1B of Dickson v Dickson: “Article 11 of the
Convention provides that the judicial or administrative
authorities of the contracting states shall act
expeditiously in proceedings for the return of children.
The intention is that proceedings should be conducted as
quickly as possible in order to assure the return of a child
who his been wrongfully removed from his place of habitual
residence with the minimum of delay.”
040 In this particular case the timetable was as follows.
On 2 February l993 the first order for service of the
petition was pronounced. On 12 February 1993 a further order
was pronounced ordaining both parties to lodge affidavits
and on 2 March 1993 a first hearing was fixed for 18 March
1993. The first hearing before the Lord Ordinary lasted for
four court days, as stated earlier in this opinion, and was
completed on 24 March 1993. The opinion of the Lord Ordinary
was issued on 25 March 1993 and on 5 April a reclaiming
motion by the petitioner was marked. Thereafter the grounds
of appeal were lodged on 11 May 1993 and on 23 June 1993,
after legal aid had been granted to the petitioner, a
request for an early date for the hearing of the appeal was
made. The hearing before this court was then arranged and
took place on 8 and 9 July 1993. In these circumstances
there does not appear to have been any undue delay on the
part of the court authorities in this case but this is a
matter that will no doubt be kept under constant review in
the future.
LOAD MAYFIELD
041 On 25 March 1993 the Lord Ordinary dismissed the
petition which had been presented to this court by the
reclaimer. The petition was presented under Pt. I of the
Child Abduction and Custody Act 1985 for the return of a
child. The respondent is Scottish and went to Australia on a
12 months’ working holiday towards the end of 1987. She met
the petitioner In December 1987 and formed a relationship
with him. The petitioner is an Australian national and the
parties lived together for about two years until separating
in November 1990. There was a formal separation agreement.
In terms of that agreement the respondent made over to the
petitioner her share of the house formerly occupied by them.
Subsequently, when some six months pregnant, the respondent
returned to Scotland in March 1991. There was further
communication between the parties and the respondent wrote
to the petitioner on 14 April 1991 in affectionate terms and
looking forward to getting back so Australia as a family.
The petitioner visited Scotland for the birth of the child
which occurred on 27 June 1991. The petitioner was
registered as father of the child and an Australian passport
was obtained for her. The petitioner then returned to
Australia and some days later was joined by the respondent
who landed in Australia on about 1 September 1991.
Thereafter the parties lived together for a period of some
15 months until on or about 27 November 1992, when the
respondent, having told the petitioner that she was going to
spend a weekend with relatives, boarded an aeroplane and
again returned to Scotland. She had previously consulted a
solicItor who had advised that there was nothing to prevent
her from taking the child to Scotland.
042 In the petition the petitioner seeks an order under
the Child Abduction and Custody Act 1985 and the articles of
the Hague Convention set out in Sched I to the Act. The
United Kingdom and Australia are among the contracting
states to this Convention, and the effect of the act is that
so far us Scotland is concerned the Court of Session has
jurisdiction to entertain applications under the Convention
for the return of a child as the instance of any person who
claims that the child has been removed or retained in breach
of custody rights, provided that the child was habitually
resident in the contracting state immediately before any
breach of those rights occurred.
043 The Lord Ordinary held that while the patties had at
no thee been married it was accepted that under the relevant
Australian law they each shared joint custody of the child
in question. The Lord Ordinary held that the relationship
between the parties was an uneven one and observed that
there was clear affidavit evidence to the effect that the
respondent became very unhappy. In setting out his findings
the Lord Ordinary has referred to an important area of
dispute. The petitioner in his affidavits emphatically
denied there was any understanding that if the parties’
relationship did not work out the respondent would return to
Scotland along with the child. The respondent on the other
hand maintained that her return so Australia was part of an
attempted reconciliation and it was discussed and agreed in
terms that if things did not work out both she and the child
would come back to Scotland. The Lord Ordinary considered
whether or nor there was an agreement. He found as a fact
that when the respondent returned to Australia in September
1991 she did so as part of an attempted reconciliation with
the petitioner and on the express understanding that if the
relationship again failed she and the child would return and
live with her mother in Scotland. He reached that
conclusion after considering all the facts and circumstances
and various affidavits. The Lord Ordinary also found from
the facts that the habitual residence of the parties was in
Australia. That finding was not disputed before this court,
nor was it submitted, as averred in the reclaiming print,
that the child would be at grave risk if returned to
Australia.
044 Counsel for the reclaimer submitted that the Lord
Ordinary had erred in law in relation to the proper
interpretation of art 13(a) and in reaching the
<* page 985>
conclusion that when the respondent returned to Australia in
September 1991 she did so as part of an attempted
reconciliation with the petitioner and on the express
understanding that, if the relationship again failed, she
and the child would return and live with her mother in
Scotland. She submitted that the Lord Ordinary erred in the
conclusions he had reached on the facts. She maintained that
there had been no agreement between the parties about the
removal of the child. Further, even if there had been an
agreement, the Lord Ordinary erred in holding that the
agreement was still extant at the date of the removal of the
child. Those were the main submissions. It was also
submitted and referred to in the grounds of appeal that the
Lord Ordinary erred in drawing inferences from surrounding
circumstances in order to conclude that the agreement did
exist; and that there was insufficient evidence to find that
such an agreement existed. He also erred in holding that
the affidavit evidence presented by the respondent in
respect of an agreement was credible. In my view, even in a
case such as this which depended on affidavit evidence, my
understanding is that it is for the Lord Ordinary to assess
the evidence and the significance of the various factors and
the weight to be attacked to them. This court cannot
interfere in the conclusions on the facts reached by the
Lard Ordinary on the evidence provided, of course, that the
findings were not perverse or that no reasonable Lord
Ordinary could have reached such a conclusion on the facts.
045 Initially, I was under the impression from the
opening speech of counsel for the reclaimer, as was counsel
who appeared for the respondent, that her criticisms of the
Lord Ordinary’s opinion were confined to his conclusions on
the facts. However, while having some sympathy with counsel
for the respondent, who submitted that no question of
interpretation of art 13(a) had been raised in the
reclaimer’s first ground of appeal, the court decided that
it was appropriate that the matter of interpretation of the
relevant articles be considered. She submitted that the
alleged agreement occurred 15 months before removal and
there was no agreement in relation to the removal of the
child at the date of removal. As stated earlier the law is
such that this court is obliged to accept the Lord
Ordinary’s conclusion on the facts. The Lord Ordinary’s
conclusion was that the petitioner both in form and in
substance “‘consented’ to their doing so within the meaning
of art 13(a) of the Convention in question” (p 979L, supra).
He accepted that a stage might arise after an agreement had
been entered into when the parties could be regarded as
having become wholly reconciled and to have embraced a new
life together. The conclusion he reached was that that
stage had nor been reached. He explained his reasons for
reaching that conclusion. He then stated that once it had
been accepted that such an agreement or understanding was
entered into it was in the circumstances still extent and
the application must be refused.
046 There are three articles which are relevant to this
case. ArtIcle 3 states: [his Lordship narrated the terms
of art 3 and than art 12 set out supra and continued:]
047 The critical article, however, in my view is
contained in art 13, which states: [his Lordship quoted the
terms of art 13 set our supra and continued:]
048 Counsel for the reclaimer laid considerable emphasis
on the finding of the Lord Ordinary that he had found the
habitual residence (referred to in art 3) to be In
Australia. She maintained that there was an inconsistency
in the opinion of the Lord Ordinary in that he had found the
habitual residence to be in Australia but had also reached
the conclusion that by November 1992 there had not been a
reconciliation. I do not myself consider that “habitual
residence”, which can be established after a short period,
is inconsistent with the Lord Ordinary’s finding that
reconciliation had not taken place. Counsel for the
reclaimer submitted that the respondent had to establish
that the petitioner bad consented to the removal. As I
understand her submission, that meant that the consent by
the petitioner must have been given by the petitioner to the
actual removal and at the time of the removal. Consent
applies to the particular removal. She also stated that the
respondent should have gone to the Australian court in
Victoria and obtained their agreement to the removal of the
child.
049 I am not able to accept counsel for the reclaimer’s
contentions.
050 While the words “the removal” in art 13(a) refer to
the actual removal which took place it does not in my view
mean that the consent must be given at the time of removal.
The words “had consented to . . the removal” are not
consistent with that view. In my view there is nothing in
the article which bars consent to the removal sometime in
the future. Nor do I accept the submission that if the Lord
Ordinary was upheld it would provide an easy opportunity to
others to avoid the provisions of the Convention by merely
claiming that there had been an agreement such at the one
found by the Lord Ordinary in this case.
051 My understanding of the position is that the object
of the provision in art 13(a) is to give the party, in this
case the respondent, the opportunity to embellish or satisfy
the Lord Ordinary that the removal of the child was with the
consent of the other party. On the facts of the present case
the Lord Ordinary has held as a fact that there was an
agreement and that the agreement was in force at the time of
removal and that the consent still stood. The Lord Ordinary
recognized that such an agreement and consent did not
subsist for all time. In this case, however, after careful
consideration he found that the agreement remained in force.
In that event he Was not bound to order the return of the
child because he was satisfied on the facts that the
petitioner had consented to the removal. In these
circumstances the reclaiming motion should be refused.
LORD MORTON OF SHUNA
052 I wholly agree with your Lordship in the chair on
every point except on the matter statutory interpretation
and in particular on the meaning of the words “had consented
to the removal” in art 13(a) of the Convention enacted as
Sched 1 to the Child Abduction and Custody Act 1985.
<* page 986>
053 The Lord Ordinary’s finding that the child was
habitually resident in the state of Victoria and the
acceptance by both parties that by the law of Victoria the
petitioner and the respondent had joint custody of the child
means that the removal of the child was wrongful under art 3
and under art 12 the court in Scotland is required to order
the return of the child unless under art 13 the respondent
establishes that “the person, institution or other body
having the care of the person of the child was nor actually
exercising the custody rights at the time of removal or
retention, had consented to or subsequently acquiesced in
that removal or retention”.
054 The Lord Ordinary has held that the agreement entered
into when the respondent returned to Australia in September
1991 was to the affect “that if the relationship again
failed she and the child would return and live with her
mother in Scotland”, and that by entering into that
agreement: “the petitioner, both in form and in substance,
‘consented’ within the meaning of art 13(a) of the
Convention” (pp 978F and 979L, supra).
055 In my opinion it is quite clear this art 13(a) is
providing only for consent to or acquiescence in a
particular act of removal or retention. The first part of
art 13(a) with its reference to a person not actually
exercising custody rights at the time of removal or
retention, is clearly referring to the particular act of
removal or retention in question and in my opinion the
phrase “or had consented to or subsequently acquiesced in
the removal or retention” clearly is referring also to the
particular removal in question. If one deals only with
consent to a removal, the wordIng of art 13(a) would be “or
bad consented to the removal”. This interpretation appears
to me to be the natural meaning of the words in the article
and to fit with what I understand to be the purpose of the
Convention. It is, I consider, that a main purpose of the
Convention is that the court of habitual residence should be
the court to decide any issue relating to custody of a
child, with a discretion given to the court of a state to
which the child may have been removed to refuse to order the
return if there has been consent to the removal or for any
of the other reasons permitted by art 13. To hold that a
consent to subsequent removal can be given before habitual
residence has begun, and remain in force throughout the
period of habitual residence, and, so far as I could
understand from the submission of counsel, could not be
withdrawn by the petitioner, seems to me clearly not the
type of consent which was contemplated in art 13(a). The
modern concept of the rights and duties involved in custody
of children is that the best interests of the child should
be paramount. An irrevocable consent to a possible future
removal of a child from a situation which might he very
different from that contemplated when the consent was given
is difficult to fit in with the concept of the best
interests of the child being paramount. However of the
consent under art 13 is confined to a particular removal
contemplated by the other party having custody rights it Is
more easy to understand that the consent, if given, is given
in the best interests of the child, and after consideration
of the situation at the time of removal.
056 In my opinion it is quite clear that when the
respondent decoded that she could no longer live with the
petitioner, the appropriate court to decide any dispute
dispute between the parties as to the custody of she child
was the appropriate court in the state of Victoria in
Australia. The respondent should have gone to that court and
sought custody of the child and authority, if that is what
she wished, to take the child to Scotland. She could, in
that court, have founded on the agreement between herself
and the petitioner as an argument in favour of granting
permission for that course. The court in Australia where
both parents were living and where the child bad lived for
most of her life up to the date of the separation of the
parents was clearly in a far better position so reach an
informed conclusion on a dispute about custody. The effect
of the Lord Ordinary’s decision would be that any dispute
about custody of the child will require to be decided by a
Scottish court on evidence largely from Australia. Instead
of going to the court in Australia the respondent
clandestinely removed to the opposite side of the world the
child when, at that time, both the petitioner and respondent
had custody rights to her. The removal appears to me to be
precisely the type of action which the Child Abduction and
Custody Act 1985 and the Convention sought to prevent or at
least discourage. I would have allowed the reclaiming motion
and ordered the return of the child to Australia. However
as your Lordships have reached a contrary conclusion I must
respectfully dissent.
057 It is, I consider, most unfortunate that this action
has taken so long in the Scottish courts. The petition first
in court in February 1993 and the Lord Ordinary issued his
opinion on 25 March 1993. The reclaiming motion was heard on
8 and 9 July 1993. Article 11 of the Convention provides
that: “The judicial or administrative authority of the
contracting States shall act expeditiously in proceedings
for the return of children”.
058 The article concludes with a paragraph that suggests
that a decision should be reached within six weeks. In this
case the proceedings have so far taken five months. In
England it appears that a decision usually takes much less
time, even if appealed. For example in Re F (A Minor)
(Child Abduction) the summons first came before a judge on
16 July 1991, a hearing took place on 18 July and the judge
on 19 July ordered that she child be returned. An appeal was
taken so the Court of Appeal and was refused on 31 July
1991. That timetable appears to me to be an exemplary
example of expedition. It is very unfortunate that this
case, and especially the reclaiming motion, was not treated
with the expedition required by the Convention.
Counsel for Petitioner and Reclaimer, Davie; Solicitors,
Balfour & Manson, Nightengale and Bell
Counsel for Respondent: Fitzpatrick (Inner House) Dewar
(Outer House); Solicitors, Garden, Haig, Stirling & Burnet