Expert Witness Journal Dec 24 - Journal - Page 71
TS v S - the Increasing Importance of
a Child's Views in Child Abduction Cases
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.
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.
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.
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.
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.
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.
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.
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 in-
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
EXPERT WITNESS JOURNAL
69
DECEMBER 2024
