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Law - lack of jurisdiction unimportant
The issue was raised in the case
of B v B concerning the most appropriate place of residence
for a 7 year old girl, R, the daughter of Mr and Mrs B. In
September 2000, the couple separated and Mrs B left the matrimonial
home in Inverness and moved to London taking her daughter
with her without the consent of the father.
In November 2000, Mrs B applied to the English courts for
a residence order preventing Mr B from removing the child
from her care. The order was served on Mr B in December 2000,
without regard to section section 41 of the Family Law Act
1986 (FLA 1986), which treats a child in R's situation as
habitually resident in Scotland for a year from the date of
wrongful removal. In effect, the English courts did not have
the jurisdiction to make the order within the time limits
set by section 41, but it was not until more than a year later,
in November 2001, that Mr B responded by applying for a residence
order and a contact order in the English courts.
Mr B was eventually granted a contact order in November 2002
and took this opportunity to apply to the High Court under
the Child Abduction and Custody Act 1985, claiming that matters
relating to the welfare of R should be heard in the Scottish
courts. He argued that the original residence order was made
without regard to section 41 FLA 1986 and that all subsequent
proceedings had been tainted by the English court's lack of
jurisdiction to make it.
Mr B's argument was rejected by the High Court and in other
related proceedings in England and he turned to the Scottish
courts, initiating divorce proceedings in February 2003. He
argued, again, that Scotland was the correct jurisdiction
for matters relating to the welfare of R, but the Scottish
Court exercised its jurisdiction not to initiate proceedings
in relation to the child until the English proceedings had
been concluded.
Meanwhile, the English Court of Appeal found that the lack
of jurisdiction of the 2000 order did not, in itself, make
it a nullity. On the face of it, the order was regular and
until discharged it remained effective. Significantly, in
the year subsequent to the making of the order Mr B did not
initiate any proceedings in Scotland or England. By November
2001, when Mr B did initiate proceedings in England, section
41 of the FLA 1986 had ceased to have effect. The judge echoed
the point made by Johnson J in the High Court: "the important
question is whether R shall live with her mother in England
or with her father in Scotland. In whichever country the decision
falls to be made, the court will strive to achieve what is
best for R. Be it in Scotland or be it in England, the objective
will be what is best for her. Her interests will be paramount."
In relation to the Scottish divorce proceedings, the Court
of Appeal agreed with the way in which the Scottish Court
had's exerciseding of its discretion. Summer J concluded:
"Mr B has belatedly issued divorce proceedings in what
seems to me a last ditch attempt to resurrect the Scottish
jurisdiction over R. In that, he had been properly thwarted
both by the courts of Scotland and of England."
B v B
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