M. v M.

Court of Session

Inner House (Second Division)

17 November 1995

Lord Justice Clerk (Ross), Lords McCluskey and Coulsfie

The petitioner and the respondent were married on 27 December 1974. There are five children of the marriage, and these proceedings relate to one child of the marriage, namely V.M. (hereinafter referred to as "the child") who was born on 26 November 1981. Two of the other children of the marriage, namely I.M. and T.M., are both over the age of 16 years.

The petitioner and the respondent lived together with their children in Kinsale, County Cork, Ireland, until in or about June 1994 when the respondent left the petitioner and went to live in Scotland. On 28 April 1995, the child left Kinsale in the company of her aunt, A.W., without informing her mother. She travelled by plane to Edinburgh where she was met by the respondent. Since then she has lived with him in St Coumbes, Fraserburgh.

In this petition, the petitioner seeks an order for the return of the child in terms of the Child Abduction and Custody Act 1985. The respondent lodged answers to the petition and, after adjustment of the petition and answers, a proof took place before the Lord Ordinary. On 10 July 1995 the Lord Ordinary made avizandum, and on 17 August 1995 he issued an interlocutor ordaining the respondent to return the child to the jurisdiction of the state of her habitual residence, namely Ireland, in terms of the Child Abduction and Custody Act 1985. Against that interlocutor of the Lord Ordinary the respondent has reclaimed.

In opening the reclaiming motion, counsel referred to arts 3, 5, 12 and 13 of the Hague Convention contained in Sched 1 to the Child Abduction and Custody Act 1985. It was admitted before the Lord Ordinary and this court that the retention of the child was unlawful in terms of art 3 of the Convention, and that the petitioner had rights of custody to the child in terms of art 5. That being so, it was not disputed that art 12 applied, and that unless art 13 could be invoked successfully, the court should order the return of the child forthwith. The respondent, however, founded upon provisions contained in art 13.

Article 13 provides inter alia as follows: [his Lordship quoted the terms of art 13] In his answers the respondent contended that the return of the child would place her in an intolerable situation, and in any event that she objected to being returned to Ireland, and that she had reached an age and degree of maturity at which it was appropriate to take account of her views. Before the Lord Ordinary, however, the respondent did not insist in the contention that the return of the child would place her in an intolerable situation. He did maintain his contention that the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views.

It was not disputed that the child objected to being returned to the petitioner in Ireland. The Lord Ordinary, however, held that the circumstances of the case were not sufficiently exceptional for him to depart from the general aim of the Convention and to apply the exception in art 13 which was founded on. He accordingly granted the prayer of the petition.

Counsel for the respondent pointed out that the child was aged 13 1/2 at the time of the proof, and was now nearly 14. The Lord Ordinary had made no finding as to the child's degree of maturity. Counsel submitted that the court had not laid down any minimum age which had to be attained before a child's objections should be taken into account, and that 13 1/2 was a sufficient age. On the issue of maturity counsel referred to the evidence of the child herself and submitted that it showed that she had attained a sufficient degree of maturity. They also founded on the evidence of Dr Brenda Robson, a psychologist who had given evidence and spoken to a report which she had prepared in which she expressed the opinion that the child was old enough and of sufficient maturity to understand the implications of her actions and to decide whether she wished to live with her father or her mother. The Lord Ordinary had not stated whether he accepted or rejected Dr Robson's evidence. Counsel appreciated that there was other evidence in the case from the petitioner and other witnesses suggesting that the child was immature.

Since the Lord Ordinary had made no finding about the child's degree of maturity, counsel submitted that the issue was at large for this court. They contended that the situation was covered by the third category of case identified by Lord Thankerton in Thomas v Thomas at 1947 SC (HL), p 54; 1948 SLT, p 5: "(3) The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

In the course of their submissions counsel referred to a number of authorities including Re S (A Minor) (Abduction: Custody Rights); Re A (A Minor); Re A (No 2); W v W (Child Abduction: Acquiescence); Re M (A Minor) (Child Abduction); and Urness v Minto.

Six grounds of appeal were put forward on behalf of the respondent and counsel addressed the court on all these grounds. In essence, the submission for the respondent was that the Lord Ordinary ought to have held that the child had attained an age and degree of maturity at which it was appropriate to take account of her views, and that having regard to these views, he ought to have exercised his discretion so as to refuse to order the return of the child. The grounds of appeal are rather elaborate, but the position adopted by the respondent is conveniently stated in ground 6 as follows: "On the evidence adduced, the said child was of an age and had reached the said degree of maturity and objected to being returned. The basis of her objections were substantial and such that no Lord Ordinary properly directed could have failed to exercise his discretion in recognition of the child's rights under art 13 and, accordingly, should have refused the order sought."

Counsel for the petitioner emphasised that, having regard to the terms of the Convention, and in particular art 12, prima facie the child should be returned. They stressed that it would only be in very exceptional cases that the court would be entitled under the exception founded upon in art 13 to refuse to return the child. They recognised that the Lord Ordinary had not been explicit in his opinion about the child's degree of maturity, but they maintained that it was clear that he had concluded that she was immature. That being so there was no need for the Lord Ordinary to consider whether he should exercise his discretion as to whether or not to grant the order sought. Alternatively, if the Lord Ordinary had concluded that the child was of a sufficient degree of maturity to have her views taken into account, then it was clear that he had exercised his discretion in favour of making the order, and this court would not be entitled to interfere with that exercise of discretion.

The court and the parties have had considerable difficulty in this case in ascertaining what the Lord Ordinary decided on the matters of fact which he was required to determine and the grounds for the decision he reached to order the child's return. In his opinion the Lord Ordinary has summarised the evidence which was adduced by both parties, and he has also recorded the submissions made by counsel for the parties. Unfortunately, however, he has not made it clear what conclusions he reached on the various matters of fact which were in dispute. In the sheriff court, a sheriff is required to set out his findings in fact and in law, and also to set out the grounds upon which he has proceeded (rule 89 of the Ordinary Cause Rules). These rules do not, of course, apply to judges in the Court of Session, but in his opinion a judge ought to make clear what his findings are on questions of fact, and he should also state the grounds of his decision. In the present case, the Lord Ordinary recognised that what was in issue was the child's degree of maturity, and whether the reasons she gave for objecting to being returned were good and valid reasons. The Lord Ordinary, however, failed to state what conclusions he reached upon these issues. There was conflicting evidence regarding her maturity and the Lord Ordinary ought to have made it plain whether or not he was satisfied that she had attained an age and degree of maturity at which it was appropriate for him to take her views into account. He has made no explicit finding either way upon that matter. Dr Robson was described by the Lord Ordinary as "clearly qualified and experienced in cases such as this", but he has not stated whether he accepted or rejected her evidence regarding the child's maturity. Indeed there is no way of knowing whether the Lord Ordinary accepted or rejected a great deal of the evidence in the case. The present case may be contrasted with Urness v Minto where the Lord Ordinary made his findings on the evidence extremely clear. In the present case, the Lord Ordinary's opinion is defective in that he has not made plain what his decision was on the important issues in the case. This has meant that the whole hearing of this reclaiming motion has been bedevilled by the fact that neither the parties nor the court could be confident as to what the Lord Ordinary's conclusion was upon the facts.

The question of whether a child has attained an age and degree of maturity at which it is appropriate to take account of its views, raises questions of fact which are peculiarly within the province of the judge who has heard the evidence. In the present case the child herself gave evidence, and plainly the judge was in a far better position than this court to assess whether in the light of the whole evidence, including the evidence of the child herself, she had attained an age and degree of maturity at which it was appropriate to take account of her views. If the matter were to be held at large for this court, it would be extremely difficult for this court to reach a conclusion upon that issue not having seen and heard the child giving her evidence.

In his opinion the Lord Ordinary states that he was quite satisfied that the child's objection to returning was genuine and heartfelt. As we understand it, it was in fact conceded that she objected to returning, and the statement that her objection was genuine and heartfelt does not necessarily point to her having the requisite degree of maturity. It is most unfortunate that the Lord Ordinary has not been explicit about this matter. He ought to have stated in terms whether or not he was satisfied that she had attained the age and degree of maturity required. Counsel for the petitioner submitted that it was clear that the Lord Ordinary had not accepted that the child had attained the necessary age and degree of maturity because in the penultimate paragraph of his opinion he states that the submissions of counsel for the petitioner are well founded. Earlier in his opinion he summarised these submissions as follows: "Counsel invited me to reject the evidence of V. standing the overwhelming evidence to the contrary and to her maturity as qualifying her to assess her own situation."

That sentence is far from clear, and prior to the hearing of this reclaiming motion a motion was enrolled of consent asking the Lord Ordinary to clarify that statement in his opinion. We would only add that it should not be necessary for an approach of this kind to be made to a Lord Ordinary after he has issued his opinion. The Lord Ordinary provided a supplementary opinion in which he stated: "Further to my earlier opinion and for the purpose of clarification, I should like to point out that counsel for the petitioner invited me to reject the evidence of V., first, because it flew in the face of overwhelming evidence to the contrary, and secondly, because the evidence as to her maturity, or lack of it, was not such as to qualify her to assess her own situation properly."

What is stated in the supplementary opinion does not clarify the situation in a satisfactory manner. If the submission for counsel for the petitioner has been correctly described by the Lord Ordinary, it appears to reveal a degree of confusion. One can understand that it could be a ground for rejecting the child's evidence that it flew in the face of overwhelming evidence to the contrary, but the second reason put forward for rejecting her evidence, namely her lack of maturity, does not appear to us to be a sound reason for rejecting her evidence. Even if the Lord Ordinary was to be persuaded that she was immature, that does not appear to us to be a sound reason for rejecting her evidence entirely.

In the penultimate paragraph of his opinion the Lord Ordinary goes on to say: "I therefore hold that it has not been established that standing the age and maturity of V. there is sufficient substance in the reasons given for her objection to returning."

Although the Lord Ordinary has not been explicit on the matter, it appears to us that the Lord Ordinary's reference to "standing the age and maturity of V." should be taken as meaning that he was accepting that she had attained an age and degree of maturity at which it was appropriate to take account of her views. Unless that is so, it is difficult to understand why he made that remark about her age and maturity. As we read that sentence, it appears proper to conclude that the Lord Ordinary was satisfied that she had attained the requisite age and degree of maturity, but that he concluded that the reasons which she gave for objection to returning lacked substance.

The final sentence of the penultimate paragraph is in the following terms: "I also hold that the circumstances of this case are not sufficiently exceptional for me to depart from the general aim of the Convention and apply the exception in art 13."

That sentence is only intelligible on the view that the Lord Ordinary is explaining why he exercised his discretion in favour of making the order. There would be no ground for his exercising his discretion unless he was first of all satisfied that the child had attained the necessary age and degree of maturity, and this is a further reason for concluding that the Lord Ordinary must have been satisfied that she had attained the requisite age and degree of maturity. We agree with counsel that when an issue is raised under this part of art 13, the court requires to consider (1) whether the child objects to being returned, (2) if so, whether the child has attained an age and degree of maturity at which it is appropriate to take account of its views, and (3) if so, whether the court is prepared to exercise its discretion to refuse to order the return of the child.

It is by now well recognised that the general presumption is in favour of the immediate return of children to the state of their habitual residence so that issues of custody and related issues may be determined by the courts of competent jurisdiction there. It has been said on many occasions that it is only in exceptional circumstances that there should be any departure from this course (Re S (A Minor) (Abduction: Custody Rights); Re M (A Minor) (Child Abduction); and Urness v Minto).

In the present case there was no dispute that the child objected to being returned. As already indicated, we have, although with some hesitation, come to the view that the Lord Ordinary must have concluded that she had attained the requisite age and degree of maturity. In that situation the Lord Ordinary had then to determine whether he should exercise his discretion to refuse to return the child to Ireland. As we read his opinion he decided to exercise his discretion so as to grant the order because he considered there was insufficient substance in the reasons which the child gave for her objection. Earlier in his opinion he expressed the view that there was a degree of exaggeration about the reasons which she gave for her unhappiness and that her account was contradicted in important respects both by members of her family and independent observers. In this connection he considered it important that the respondent himself had detected no great unhappiness in her during his two visits to Ireland. He also noted that there was now no suggestion being made that returning the child to Ireland would expose her to an intolerable situation.

In our opinion the Lord Ordinary was entitled to exercise his discretion in favour of granting the order. The reasons which he gave for exercising his discretion as he did, appear to us to be reasons upon which he was entitled to rely to justify the exercise of his discretion. Since the Lord Ordinary was exercising a discretion, this court would not be justified in interfering unless the Lord Ordinary was shown to have exercised his discretion upon some wrong basis or to have had regard to some irrelevant consideration or have failed to have regard to some relevant consideration. Having regard to the reasons which he has given, we are not persuaded that any good grounds have been put forward which would justify us in interfering with the Lord Ordinary's exercise of his discretion.

It follows that, although the Lord Ordinary has not stated his grounds of decision with clarity, there is sufficient in his opinion to warrant this court in concluding that he arrived at a decision at which he was entitled to arrive, and that he had adequate material before him to entitle him to exercise his discretion as he did.

For the foregoing reasons the reclaiming motion must be refused.

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