Father fails in appeal against mother’s removal of children from Italy to Scotland

A judge had ruled that while the children were “habitually resident” in Rome at the time they travelled to the UK, the father had given his “consent” to their removal.

The father challenged the Lord Ordinary’s ruling, but the Inner House of the Court of Session upheld the decision.

‘Wrongful removal’

The Lord President, Lord Carloway, sitting with Lord Drummond Young and Lord Malcolm, heard that the British-Iraqi petitioner “YS” and the respondent “BS”, a Scots-born British national, married in January 2013 and that there were two children of the marriage - one born in September 2013 and another born in October 2015.

Since 2011 the petitioner, an engineering contractor in the oil industry for BP in Baghdad, had worked for a month at a time in Iraq followed by a month in Rome, where he was the owner of a residential property which became the family home for his wife and children.

The court was told that during the course of 2018 the couple’s “volatile” marriage was deteriorating and that on 19 January 2019, the day after a disagreement which involved the police being called, the respondent removed the children from Italy and returned to Scotland, where they have been resident ever since and where the children are now attending nursery and primary school.

The father raised proceedings for an order under the Child Abduction and Custody Act 1985 requiring the return of the children to Rome, claiming that the children were “habitually resident” in Italy immediately prior to their removal from Rome, that he did not consent to their removal, that their removal had been “wrongful” and that accordingly an order for their return to Italy should be made.

But the respondent argued that the habitual residence of the children was in Scotland and that, in terms of article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, the petitioner had “consented” to their removal from Italy and there was a “grave risk” of either physical or psychological harm to the children should they be returned.

‘Consent’

Lord Brailsford found in favour of the father on two of the three issues in the case, namely the children’s habitual residence and whether return would create a grave risk of harm to them, but he upheld the mother’s article 13 defence based on the father’s consent to the removal.

The Lord Ordinary held that it was proved that the father had given written consent by way of a document dated 18 September 2018. 

There was also a WhatsApp message dated 8 October 2018 in which the father made reference to “my separation note”, and again indicated that, the marriage having broken down, the children should be with their mother, with the legal formalities being conducted in the courts of Scotland, if that was the mother’s wish. 

He suggested that the children should remain in Italy until Christmas of that year, with legal proceedings concerning the dissolution of the marriage to follow.

The petitioner challenged the Lord Ordinary’s decision, arguing that the judge erred in concluding that the note of 18 September 2018 indicated real, positive and unequivocal consent to the children’s removal.

It was submitted that it only allowed the respondent “to travel” to Scotland with the children, not remove them.

It was argued that the Lord Ordinary had failed to have regard further WhatsApp exchanges, including in December 2018 and January 2019, which envisaged a continuation of family life in 2019, and that any earlier consent had been “revoked” by the time of the children’s removal.

It was also argued that undue weight had been given to the “abrupt and covert” removal of the children, which was “inconsistent” with any expression of consent.

‘No error of law’

However, the appeal judges were “not persuaded” that there was any error of law and therefore refused the reclaiming motion.

Delivering the opinion of the court, Lord Malcolm said: “At root the father’s submissions are an invitation to this court to retry the case and issue a different decision on the question of consent. We have not identified any error of law on the part of the Lord Ordinary. 

“He has not made a key finding of fact which has no basis in the evidence. He has not demonstrably misunderstood or failed to have regard to relevant evidence. 

“It follows that this court can only interfere if satisfied that the decision can be categorised as one which was not available to him, or as it is sometimes put, was ‘plainly wrong’.”

But the court was not so persuaded. 

The judge explained: “The September document indicated that on the breakdown of the marriage the father was of the view that the children should be with their mother in Scotland. In the October WhatsApp message he considered that the marriage was over and he stood by his ‘separation note’. 

“The mother should keep the children ‘as they need you even more than me’. The mother had to decide where she wanted to live, in Italy or in Scotland, and then the appropriate proceedings could begin. 

“In short, the children should stay with their mother wherever she wished to live. The fact that thereafter the parties’ relationship remained volatile, with some periods of affection, and even possibilities of continued married life, did not fundamentally alter the situation. 

“It is clear that the events of 18 January 2019 made up the mother’s mind that it was time to leave her husband and return to Scotland with the children. The fact that she did not warn him about this does not mean that she took this course without his consent. 

“Likewise, if it be the case that after removal and once he found out what had happened he decided that he was unhappy about it, and wanted her to stay with the children, that does not exclude the article 13 defence.”

Lord Malcom concluded: “There was no material change of circumstances by January 2019, remaining characterised by marital volatility and disharmony. Prior to the removal there was no evidence of revocation of consent.

“The immediate background was a major disagreement, with police called and the mother taking the children away from the house. The more general context was repeated recognition by the father that if the marriage ended the children should be with their mother wherever she chose to settle.”