Lord ordinary declines to order return of eight-year-old girl to Russia to live with mother

About this case:

• Citation:
  [2024] CSOH 40
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Carmichael

Petitioner TS, a national of Kazakhstan who resided in Chechnya in Russia, sought the return of Cristina, her daughter with respondent S, after he brought her to Scotland following the end of his employment on a Russian island with an energy company. The respondent sought to retain the child on the basis of grave risk and on her strongly held view that she did not wish to return to Chechnya.

The case was heard by Lady Carmichael. Trainer, advocate, appeared for the petitioner and Donachie, advocate, for the respondent.

Consistent and clear

Until 8 October 2020, the parties and Cristina resided on Sakhalin Island, Russia, just to the north of Japan. On that date, the parties divorced and a court ordered that Cristina should reside with the petitioner. She later remarried and moved to Kazakhstan, and between 2021 and 2023 moved three times between there and Chechnya. The respondent moved back to Scotland on 12 August 2023, and at that time was allowed to take Cristina there for a holiday.

It was not disputed that, on 28 August 2023, Cristina was habitually resident in Russia, or that the respondent wrongfully retained her in Scotland. It was averred by the respondent that returning Cristina to Russia would expose her to physical or psychological harm. He claimed the petitioner had adopted an extreme version of Islam, started to wear a hijab and made Cristina also wear one, and refused to talk to him without the permission of her new partner, ZSA.

It was submitted that the court should take into account the fact that Cristina had objected to returning to Russia in consistent and clear terms. When a consultant psychologist, Dr Katherine Edward, asked why Cristina would prefer that outcome, she spoke of her positive relationship with her father and her integration into her school and community. The case law supported declining to make an order in these circumstances.

The petitioner averred that the reason she used ZSA as a middleman to speak to the respondent was due to the difficulty of the divorce. It had been Cristina’s own decision to wear a hijab, and she had only done so twice. The respondent had abducted Cristina because he disagreed with the order of the Russian court.

Lived experience

In her opinion, Lady Carmichael said of the views of the child: “Cristina has the maturity to be expected of a child her age, which is 8 years, although her intellectual abilities exceed those to be expected at her chronological age. Her views are reasoned and age appropriate. I am satisfied that she is of an age and maturity such that it is appropriate for me to take account of her views. The fact that she is still very young is not inconsistent with that conclusion, but is a factor to take into account, amongst others, in assessing the weight to be given to her view.”

She continued: “Although a number of the witnesses who speak to her integration into the community are connected to the respondent, and partial to his case, there is no reason to doubt that she is in fact happy in Scotland, and settled here, particularly given her presentation to Dr Edward. While I accept that these are factors relevant to her general welfare, I am cautious about attaching much weight to them.”

Lady Carmichael said of the significance of Cristina’s views: “It cannot be said that her views are not grounded in reality. They have been formed in the context of her lived experience between September 2021 and August 2023. Dr Edward observed also that it was possible that aspects of the petitioner’s response to the present situation were encouraging Cristina’s wish to remain in Scotland.”

She concluded: “Against that background, I am not persuaded that either the policies underlying the Convention, or the petitioner’s role as primary carer are factors of such gravity as to prevent me from exercising my discretion to refuse to order the return of Cristina to Russia.”

Accordingly, the court declined to order Cristina’s return to Russia. In a brief postscript, Lady Carmichael noted that the petitioner’s case of grave risk was not made out.