TS v S (Court of Session)

Factual and Procedural Background

The opinion concerns a petition by the Petitioner against the Respondent regarding the wrongful retention of a child, referred to as Cristina, in Scotland. Cristina, aged 8 years and 5 months, was habitually resident in Russia on 28 August 2023 when the Respondent, her father, retained her in Scotland without the Petitioner’s consent. The Petitioner, Cristina's mother, is a national of Kazakhstan and the Respondent is a British national. Cristina holds British nationality and a visa allowing residence in Russia.

The parties previously lived together with Cristina in Sakhalin Island, Russia, until their divorce in October 2020, when a Russian court order granted primary residence of Cristina to the Petitioner with visitation rights to the Respondent. The Petitioner remarried and relocated to Kazakhstan and then Chechnya, while the Respondent remained in Sakhalin Island. In August 2023, with the Petitioner’s consent, the Respondent brought Cristina to Scotland for a holiday but later informed the Petitioner that Cristina would not return to Russia. The Petitioner subsequently gave birth in Kazakhstan and intended to return to Chechnya.

The Lord Ordinary initially refused the Petitioner’s application to order Cristina’s return to Russia, accepting that Cristina objected to returning and was mature enough for her views to be considered. The Petitioner appealed this refusal.

Legal Issues Presented

1. Whether the child’s objection to being returned to the state of habitual residence (Russia) under Article 13 of the 1980 Hague Convention justified refusal of the return order.
2. Whether the Lord Ordinary erred in the exercise of discretion in refusing the return of the child.
3. The extent to which the child’s age, maturity, and the nature and strength of her objection should be weighed in the discretionary decision to order return or not.
4. Whether the appellate court should interfere with the Lord Ordinary’s exercise of discretion.

Arguments of the Parties

Appellant's Arguments

• The Lord Ordinary was "plainly wrong" in giving considerable weight to the child’s objection without adequately assessing the nature and strength of that objection.
• The child’s objection was narrow, focused on living with the father in Scotland but coupled with a desire to maintain contact with the mother, which was unrealistic given logistical difficulties.
• The child’s primary attachment remained with the mother, and there was no reliable evidence that attachment had shifted to the father.
• The Lord Ordinary failed to properly analyze the mother-child relationship and broader welfare considerations, including the impact of the mother’s recent childbirth and the difficulties in maintaining contact if the child remained in Scotland.
• The child’s views were influenced by the positive relationship with the father but did not reflect a fully informed objection to return.
• The delay and changes in habitual residence diminished the effectiveness of the child’s objection, and the welfare considerations favored return to the mother’s care.

Respondent's Arguments

• The concession that the child objected to return and was mature enough made the decision a matter of discretion for the Lord Ordinary, which should only be overturned if exercised on a wrong principle or plainly wrong.
• The Lord Ordinary properly considered detailed evidence, including a comprehensive child psychologist’s report, which found the child’s objection clear, well-reasoned, and free from parental influence.
• The child’s objection was strong and grounded in her lived experience, including separation from her father and integration into Scottish life.
• The Lord Ordinary balanced multiple factors, including the child’s objection, the petitioner’s role as primary carer, the child’s welfare in Scotland, and the policy objectives of the Hague Convention.
• Financial and visa difficulties raised by the Petitioner were not concretely presented at first instance and did not affect the discretionary decision.
• The Respondent was not opposed to contact between the child and the Petitioner, and efforts were made to facilitate contact despite geographical challenges.
• The Lord Ordinary’s decision was reasoned, child-centric, and consistent with applicable legal principles and precedents.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In Re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2008] 1 AC 1288	Framework for considering a child's objection under Article 13 of the 1980 Hague Convention, emphasizing discretion and the child's maturity and views.	The court applied Baroness Hale’s guidance on weighing the nature and strength of the child’s objection and recognized that discretion allows consideration of multiple factors beyond the child’s views alone.
W v A 2020 [CSIH 55]; 2021 SLT 62	Confirmed the two-stage approach for child objection cases and the requirement for a child-centric exercise of discretion focused on welfare.	The court endorsed the Lord Ordinary’s child-centric approach and discretion exercise, noting the importance of the child's views alongside welfare considerations.
PH Petitioner [2014] CSOH 79	Clarified that a child’s understanding of the legal implications of return is not necessary to give weight to their views.	The court relied on this precedent to reject the argument that the child’s lack of understanding reduced the weight of her objection.
G v G 1985 1 WLR 647	Standard for appellate interference with discretionary decisions: only if discretion was exercised on a wrong principle or was plainly wrong.	The court applied this standard to conclude no basis existed to overturn the Lord Ordinary’s exercise of discretion.
In Re M (Children) [2016] Fam 1	Recognition that children as young as six may have objections considered, with weight increasing with age and maturity.	Used to support that Cristina’s age and maturity justified serious consideration of her objection.

Court's Reasoning and Analysis

The court recognized that the wrongful retention of the child in Scotland was established under Article 3 of the 1980 Hague Convention and that the child’s objection under Article 13 was conceded. The central issue was the exercise of discretion by the Lord Ordinary in deciding whether to order return despite the objection.

The court emphasized that the discretion is "at large," meaning the judge must balance the child’s views with welfare considerations and the Convention’s objectives. The court noted that the Lord Ordinary had carefully considered a detailed psychological report, which found the child mature, bilingual, and articulate, with clear and consistent objections to return.

The court rejected the appellant’s submission that the Lord Ordinary failed to assess the nature and strength of the objection, citing Baroness Hale’s statement that consideration of strength is discretionary and context-dependent. The Lord Ordinary had explicitly analyzed the child’s views in the context of her lived experience, including separation from the father and integration into Scotland.

The court also considered the appellant’s arguments about attachment to the mother, the mother’s recent childbirth, and practical difficulties in contact but found these were matters for substantive welfare determinations rather than for the return decision under the Convention.

The court found no error in the Lord Ordinary’s balancing of factors, including the child’s objection, the petitioner’s role as primary carer, and the policy objectives of the Convention. The court held that the discretion was exercised within the generous ambit of reasonable disagreement and was not plainly wrong.

Furthermore, the court acknowledged the passage of time and the child’s settlement in Scotland but noted that longer-term welfare decisions remain to be made separately.

Holding and Implications

The court REFUSED THE RECLAIMING MOTION, upholding the Lord Ordinary’s decision to refuse the order for the child’s return to Russia.

The direct effect is that Cristina will remain in Scotland under the care of the Respondent for the time being. The decision does not set new legal precedent but affirms the established approach to discretion under Article 13 of the 1980 Hague Convention in child objection cases. It also emphasizes the importance of a child-centric and welfare-focused discretion balancing the child’s views with broader considerations. The court noted that substantive welfare decisions regarding custody and contact remain to be resolved separately and urged that such decisions proceed without delay.