This child abduction case, heard recently at the Court of Session, raises two interesting points that are relevant to both international parents, and international practitioners. First, that the views of even a young child can be given considerable weight by the judge when deciding whether or not to order a return after a wrongful removal or retention.
And second, the case raises the importance of following correct procedure for affidavits, where there is a non-English speaking party involved.
Facts
The petitioner was a national of Kazakhstan who resided in Chechnya in Russia. She sought the return there of her eight-year-old daughter "Cristina", after the respondent, her father, wrongfully retained her in Scotland following an agreed holiday. Her mother sought return of Cristina to Russia under the Child Abduction and Custody Act 1985, and the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The respondent sought to defend the petition on two grounds: that Cristina objected to a return to Russia, and that there was a grave risk her return would expose her to physical and psychological harm. Dr Katherine Edward, child psychologist, was appointed to report on Cristina's age, level of maturity and capacity, whether she objected to a return to Russia and, if so, why and whether, and if so to what extent, her views were independent of parental influence.
Discussion of Law
Article 13 of the Hague Convention provides that the judicial authority may refuse to order the return of a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views.
In M, Petitioner 2005 SLT 2, at paragraph 38, Lady Smith explained that the court should consider several matters when determining whether to exercise its discretion with regard to giving a child's views weight (provided they are of an age and maturity where it is appropriate). These include comity, convenience and the general principle it is in the best interests of a child for decisions to be determined by the court of their habitual residence. She also explained that consideration should be given to the strength of the objection, whether the views are independent to that of a parent and whether the child appreciated that the order would enable the court to decide on their future and welfare in the immediate future.
Decision (objection)
Lady Carmichael described Cristina as having “the maturity to be expected of a child her age, which is eight years, although her intellectual abilities exceed those to be expected at her chronological age. Her views are reasoned and age appropriate." She was satisfied that she was of an age and maturity where taking account of her views was appropriate. Lady Carmichael took into consideration her young age when considering how much weight to give her objection. However, she explained that she gave considerable weight to her objection.
Dr Edward did not believe that her parents had influenced her views, and concluded that her views were her own, and were formed during a period in which she was deprived of significant contact with her father. The child was confident that she would not see her father as much if she was returned to Russia. These views were "formed in the context of her lived experience". She also referred to Dr Edward's observation that there was a possibility that the child's view regarding remaining in Scotland may have been encouraged by the petitioner's response to the situation. She was satisfied Cristina was well cared for in Scotland, and had accommodation, educational and leisure opportunities to meet her needs.
Accordingly, Lady Carmichael was not satisfied that either the policies underlying the Convention, nor the petitioner's role as primary carer prevented her from exercising her discretion to refuse to order Cristina's return to Russia, and she refused to do so.
Decision (grave risk)
Lady Carmichael was not satisfied that there were any serious welfare concerns so far as the care of the child in Russia was concerned. She took into account that the child's primary carer was the petitioner until August 2023. The allegations of physical chastisement were disputed and as the child did not mention this as a factor on why she was objecting to the return, a high risk of these events occurring could not be demonstrated.
An interesting case for parents
In recent years, Scots family law has increasingly allowed children who are the subject of cases regarding their future and welfare to express their views, and for this to influence decision-making. It is of note that Cristina was only eight years old and yet Lady Carmichael was still persuaded that it was appropriate to give considerable weight to her objection to return to Russia. This reflects the general direction of travel, and that even in Hague Convention cases where, traditionally, the court may have taken a strict view of its role in enforcing the Convention, it is taking an increasingly child-centric approach. Even a relatively young child's views are relevant and may have a bearing on the outcome – although Lady Carmichael did note that their views would not be determinative.
Practitioners - take note
An issue of practice arose in this case regarding the treatment of affidavits lodged by the respondent. Paragraph 15 of Court of Session Practice Note No 1 of 2018 sets out how affidavits sworn in a language other than English are to be prepared. In particular, this sets out that they must contain information of the circumstances in which they were drafted and translated, and both the original document and the translation be provided. Certain affidavits lodged in this case did not comply with the Practice Note.
Lady Carmichael observed that:
"The procedure described in the Practice Note is aimed at providing transparency where an affidavit is obtained from a person whose first language is not English. It enables the witness to read in her own language exactly what she is being asked to swear or affirm is the truth. It provides an auditable trail, because the content of both the foreign language and English language documents can be checked, and one cross-checked against the other. If the witness does not have a document in her own language, she will be deprived of the opportunity to read over the draft herself and identify any inaccuracies before swearing or affirming. These are all important safeguards…The procedure in the Practice Note should be followed."
In this case, Lady Carmichael was able to reach a decision without relying on the evidence of the particular witnesses, and so did not require to consider what weight to give to the affidavits, but it is clear that this could be an issue in different circumstances. The drafting of affidavits in the appropriate manner was also raised in another recent decision Lady Carmichael in M v A ([2024] CSOH 38 @para 97). Family lawyers drafting affidavits, and in particular notarising affidavits in languages other than English, should familiarise themselves with the Practice Note provisions.
How we can help
Applications under the Hague Convention are complex and any parent in this situation requires urgent expert advice. You can download our full International Child Abduction Route Map and Glossary here. Our specialist family lawyers are regularly instructed either to secure the return of abducted children or to defend applications for return. If your child has been taken abroad or you fear that this may imminent, or if you have arrived in this country with your child and are facing a return application, contact our family law team for urgent assistance.
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