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Law - UK caselaw - England V Scotland
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Nick O'Brien Esq (instructed by Kaim Todner) for the Appellant
Peter Wright Esq (instructed by Hameed & Co) for the Respondent
Hearing date: 22nd April 2004
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Judgment Approved by the court
for handing down
(subject to editorial corrections)
Lord Justice Wall:
1. Two questions arise for our decision in this
appeal. They are: -
(1) do the courts of England and Wales have jurisdiction to
hear proceedings under the Children Act 1989 between the appellant
Mr B and his wife Mrs B in relation to their daughter R, who
was born on 5 August 1997?
(2) If the answer to (1) is "yes": should the English
court nonetheless decline to exercise its jurisdiction in
order for the issues between Mr and Mrs B relating to R to
be heard by the Sheriff in matrimonial proceedings instituted
by Mr. B in the Sheriffdom of Grampian Highland and Islands
at Aberdeen in Scotland?
2. With limited permission granted by Ward LJ
on 30 October 2003, Mr B appeals against an order made by
Sumner J sitting in the Family Division of the High Court
in London on 29 August 2003 dismissing Mr. B's application
to "transfer proceedings concerning R". The judge's
order, which reflects the wording of Mr. B's application,
is somewhat inelegantly expressed, since the judge plainly
did not have the power to transfer English proceedings to
Scotland. His intention is, however, perfectly clear. He was
refusing either to dismiss or to stay extant and ongoing English
proceedings under the Children Act 1989. Most helpfully, he
provided a careful and extremely clear reserved judgment,
a copy of which he directed should be sent to the Sheriff's
court in Aberdeen. He further stayed the English proceedings
pending Mr B's application for permission to appeal on terms
that Mr B did not start or continue any proceedings in Scotland
concerning R pending the determination of the application
and any consequent appeal. He refused permission to appeal.
However, Ward LJ on an oral application made by Mr B in person
granted permission, but limited it to the jurisdictional aspects
of the case.
3. As it now transpires, the jurisdictional
issue is, in my judgment, both narrow and virtually unarguable.
However, what should have been a very simple issue has become
quite extraordinarily complicated, and in order to untangle
it, it is necessary to set out the history in some detail.
In doing so, I propose to intersperse at appropriate places
the relevant provisions of the principal Statute governing
the case, the Family Law Act 1986 (FLA 1986) so that the reader
can see precisely how and why the difficulties have arisen.
4. Mr B is a Scot living in Aberdeen. He is
habitually resident in Scotland. Mrs B is by origin Somalian.
She has indefinite leave to remain in the United Kingdom,
and is habitually resident in England and Wales.
5. Mr and Mr B married in November 1996 in Abu
Dhabi. In 1997 they returned to the United Kingdom, and set
up home in Scotland. R is their only child and is rising seven
at the date of this judgment. She lives with her mother. Unfortunately,
R suffers from Down Syndrome, and has special needs.
6. Mr and Mrs B separated in September 2000.
Mrs B left the matrimonial home in Inverness and came to England
with R. She did not tell Mr. B that she was leaving, nor did
she reveal to him where she had gone.
7. On 21 November 2000 Mrs B issued an application
in the Willesden County Court under the Children Act 1989
seeking (1) a residence order relating to R and (2) a prohibited
steps order against Mr B prohibiting him from removing R from
the jurisdiction. She made a number of allegations about Mr
B's conduct towards her, which have never, as we understand
it, been adjudicated upon by any court.
8. On 29 November 2000, District Judge Morris,
sitting in the Willesden County Court made the orders Mrs
B sought. He made a residence order in relation to R: he prohibited
Mr B from removing R from Mrs B's care and control and from
the jurisdiction of the court. Because the order had been
made without notice to Mr B, it provided that there be liberty
for Mr B to apply to vary the order upon giving forty-eight
hours written notice to Mrs B's solicitors.
9. On 8 December 2000 the order of the Willesden
County Court made on 29 November 2000 was served on Mr B in
Scotland. He did not, however, make any application to vary
or discharge either the residence order or the prohibited
steps order, nor did he at that point institute proceedings
of any kind in Scotland
10. It is the order of 29 November 2000, which
provides the cornerstone of Mr B's jurisdiction argument.
He submits that the Willesden County Court had no jurisdiction
to make that order. His submission is based on section 41
of FLA 1986. This (where material) reads: -
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Nick O’Brien Esq (instructed by Kaim Todner) for the
Appellant
Peter Wright Esq (instructed by Hameed & Co) for the Respondent
Hearing date: 22nd April 2004
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Lord Justice Wall:
1. Two questions arise for our decision in this appeal. They
are: -
(1) do the courts of England and Wales have jurisdiction to
hear proceedings under the Children Act 1989 between the appellant
Mr B and his wife Mrs B in relation to their daughter R, who
was born on 5 August 1997?
(2) If the answer to (1) is "yes": should the English
court nonetheless decline to exercise its jurisdiction in
order for the issues between Mr and Mrs B relating to R to
be heard by the Sheriff in matrimonial proceedings instituted
by Mr. B in the Sheriffdom of Grampian Highland and Islands
at Aberdeen in Scotland?
2. With limited permission granted by Ward LJ on 30 October
2003, Mr B appeals against an order made by Sumner J sitting
in the Family Division of the High Court in London on 29 August
2003 dismissing Mr. B’s application to "transfer
proceedings concerning R". The judge’s order, which
reflects the wording of Mr. B’s application, is somewhat
inelegantly expressed, since the judge plainly did not have
the power to transfer English proceedings to Scotland. His
intention is, however, perfectly clear. He was refusing either
to dismiss or to stay extant and ongoing English proceedings
under the Children Act 1989. Most helpfully, he provided a
careful and extremely clear reserved judgment, a copy of which
he directed should be sent to the Sheriff’s court in
Aberdeen. He further stayed the English proceedings pending
Mr B’s application for permission to appeal on terms
that Mr B did not start or continue any proceedings in Scotland
concerning R pending the determination of the application
and any consequent appeal. He refused permission to appeal.
However, Ward LJ on an oral application made by Mr B in person
granted permission, but limited it to the jurisdictional aspects
of the case.
3. As it now transpires, the jurisdictional issue is, in my
judgment, both narrow and virtually unarguable. However, what
should have been a very simple issue has become quite extraordinarily
complicated, and in order to untangle it, it is necessary
to set out the history in some detail. In doing so, I propose
to intersperse at appropriate places the relevant provisions
of the principal Statute governing the case, the Family Law
Act 1986 (FLA 1986) so that the reader can see precisely how
and why the difficulties have arisen.
4. Mr B is a Scot living in Aberdeen. He is habitually resident
in Scotland. Mrs B is by origin Somalian. She has indefinite
leave to remain in the United Kingdom, and is habitually resident
in England and Wales.
5. Mr and Mr B married in November 1996 in Abu Dhabi. In 1997
they returned to the United Kingdom, and set up home in Scotland.
R is their only child and is rising seven at the date of this
judgment. She lives with her mother. Unfortunately, R suffers
from Down Syndrome, and has special needs.
6. Mr and Mrs B separated in September 2000. Mrs B left the
matrimonial home in Inverness and came to England with R.
She did not tell Mr. B that she was leaving, nor did she reveal
to him where she had gone.
7. On 21 November 2000 Mrs B issued an application in the
Willesden County Court under the Children Act 1989 seeking
(1) a residence order relating to R and (2) a prohibited steps
order against Mr B prohibiting him from removing R from the
jurisdiction. She made a number of allegations about Mr B’s
conduct towards her, which have never, as we understand it,
been adjudicated upon by any court.
8. On 29 November 2000, District Judge Morris, sitting in
the Willesden County Court made the orders Mrs B sought. He
made a residence order in relation to R: he prohibited Mr
B from removing R from Mrs B’s care and control and
from the jurisdiction of the court. Because the order had
been made without notice to Mr B, it provided that there be
liberty for Mr B to apply to vary the order upon giving forty-eight
hours written notice to Mrs B’s solicitors.
9. On 8 December 2000 the order of the Willesden County Court
made on 29 November 2000 was served on Mr B in Scotland. He
did not, however, make any application to vary or discharge
either the residence order or the prohibited steps order,
nor did he at that point institute proceedings of any kind
in Scotland
10. It is the order of 29 November 2000, which provides the
cornerstone of Mr B’s jurisdiction argument. He submits
that the Willesden County Court had no jurisdiction to make
that order. His submission is based on section 41 of FLA 1986.
This (where material) reads: -
"41. Habitual residence after removal without
consent, etc-
(1) Where a child who –
a. has not attained the age of sixteen, and
b. is habitually resident in a part of the United Kingdom,
becomes habitually resident outside that part of the United
Kingdom in consequence of the circumstances of the kind specified
in subsection (2) below, he shall be treated for the purposes
of this Part as continuing to be habitually resident in that
part of the United Kingdom for the period of one year beginning
with the date on which those circumstances arise.
(2) The circumstances referred to in subsection (1) above
exist where the child is removed from the part of the United
Kingdom in which he was habitually resident before his change
of residence –
(a) without the agreement of the person or all the persons
having, under the law of that part of the United Kingdom,
the right to determine where he is to reside…."
11. It is clear that immediately prior to her removal from
Scotland in September 2000, R was habitually resident in Scotland.
It is also clear that Mrs B did not obtain her husband’s
agreement for R’s removal to England. It is thus equally
clear that, in the circumstances, R was to be treated as habitually
resident in Scotland for a period of twelve months from September
2000.
12. The significance of section 41 is that under the provision
of Part 1 of FLA 1986, a County Court in England and Wales
only has jurisdiction to make orders under Section 8 of the
Children Act 1989 in relation to children who are either habitually
resident in England and Wales or present in England and Wales
and not habitually resident in any part of the United Kingdom.
This is the combined effect of the somewhat opaque provisions
of Sections 1, 2 and 3 of FLA 1986.
13. The provisions to which I have referred relate to proceedings
under the Children Act 1989 in a non-matrimonial case. As
we shall see, different provisions apply where there are pending
divorce proceedings. However, at the time Mrs B applied to
the Willesden County Court on 21 November 2000 there were
no divorce proceedings between herself and her husband pending
in either Scotland or England.
14. It is thus common ground that the Willesden County Court
did not have jurisdiction to make a residence order in Mrs
B’s favour on 29 November 2000. I will return later
in this judgment to the status of the order and the question
as to whether or not the county court had jurisdiction to
make a prohibited steps order. However, what is plain is that
had Mr B applied to the Willesden County Court at any time
before September 2001, that court would have been bound to
have discharged the residence order made on 29 November 2000:
equally, had Mr B instituted proceedings in the Sheriff Court
in Inverness prior to September 2001, that court would have
undoubtedly had jurisdiction over R in any such proceedings.
15. The curious feature of this case (and one which it is
not for us to investigate) is that within the vital one year
period Mr B did not apply to the Willesden County Court to
vary or discharge the order of 29 November 2000; nor did he
institute proceedings of any kind in Scotland.
16. The result is that the twelve months for deemed habitual
residence in Scotland provided by Section 41 of FLA 1986 came
to an end in September 2001. Quite when, in the unusual circumstances
of this case, R became habitually resident in England is a
nice question, which, fortunately, it is not necessary for
us to determine. What is, on any view, as plain as a pikestaff
is that by the end of September 2001 R was, without any doubt
whatsoever, habitually resident in England in her mother’s
care.
17. The first procedural step which Mr B appears to have taken
was to issue an application in the Willesden County Court
dated 1 November 2001 in which he states in terms that he
is seeking a residence order and a contact order. He also
says that he is seeking a direction for R’s address
to be disclosed to the court by the Child Benefit Agency.
18. In Section 12 of the form which provides for the applicant
to state his reasons for applying, and any plans for the child,
Mr B states: -
"Since the mother left Scotland with the
child I have not had any contact and have been unable to contact
the mother as I do not know her whereabouts. I therefore seek
a contact order in respect of R.
I also seek a residence order, as I am concerned about the
care given to my daughter by the mother.
I understand that the court has the last known address for
the mother and I therefore ask that they serve the application
and notice on her directly. If the mother is no longer resident
at that address I seek a direction that the Child Benefit
Agency disclose the whereabouts of the child to the court."
19. This application, which is in typescript, bears Mr B’s
signature. His explanation for it is extraordinary. He says
that the blank form was sent to him by his English solicitors.
He was told to sign it (blank) and return it. He did so, and
his solicitors then filled it in. He says that in applying
to the court as they did, for residence and contact, they
were acting wholly contrary to his instructions.
20. The Willesden County Court acted on the application. On
16 January 2002, after hearing counsel for Mr B and in the
absence of Mrs B (she not having been served) the court dismissed
the application for the Benefits Agency to disclose R’s
address. It gave permission to issue the application for a
residence order and contact order forthwith; it directed that
the application be served on the mother via her solicitors;
and listed it for directions on 22 February 2002.
21. On 22 February 2002 both Mr and Mrs B were represented
by counsel and the District Judge adjourned the application
to 18 March 2002. He reserved it to himself.
22. On 26 February 2002 Mrs B issued an application for a
non-molestation order and other protective orders under the
Family Law Act 1996. She swore an affidavit in support setting
out her case. That application came before His Honour Judge
Sich on 6 March 2002. Mrs B was represented by counsel. Mr
B was in person. The judge made non-molestation orders to
continue until 6 July 2002; he attached a power of arrest
to the relevant parts to the same date; he gave Mr B liberty
to apply to vary or discharge the orders on forty-eight hours
notice to Mrs B’s solicitors and gave Mr B liberty to
file and serve statements in answer to the application not
later than 15 March 2002.
23. On 18 March 2002, Mr B swore an affidavit in Family Law
Act proceedings. A flavour of Mr B’s position can be
gathered from paragraph two of his affidavit: -
"2 By the way of background the applicant
on the 19 September 2000 made a unilateral decision to terminate
her habitual residence and place of ordinary matrimonial residence
in a conspiracy involving the Grampian Police, Aberdeen Social
Work Department, Scottish Down Syndrome Association and others
who aided and abetted her in the forceful unlewful [sic] removal
of the child R from the safety and care of her Aberdeen home
without my knowledge or consent prior notification to me which
effectively denied me my Human Rights under the Human Rights
Charter and the Human Rights Act 1998.
To date in another conspiracy involiving [sic] the solicitors
of both parties have ensured that the vital releveny [sic]
documents and information such court orders notice of impendige
[sic] applications and notice of proceedings and acknowledgement
of service have either not been served upon me prior to the
event; have been deliberatly [sic] withheld or misdirected
or I have been made aware of their existence their for I am
not able to truthfully state what proceedings are in which
state of process or progress of being resolved for or against
me in England and Wales. "
24. In paragraphs 20 and 21 of the same affidavit Mr B stated:
-
"20 This entire series of sworn statements
are a tissue of fabrication concocted by these individuals
to support their fictitious FLA Part (?) domestic violence
application and has no basis in truth.
21 I hereby ask, as should have been done by my legal representatives
from the onset that this, their application be dismissed and
the order by District Judge Morris of the 29 November be set
aside or discharged."
25. On 18 March 2002 the District Judge gave directions in
the Children Act proceedings. Mr B was present in person,
and Mrs B was represented by her solicitor. The order made
by the District Judge is significant in jurisdictional terms,
since he time-tabled Mr B’s applications for residence
and contact to a final hearing, and gave directions for a
report from a CAFCASS officer. The full order made by the
District Judge was in the following terms: -
"1. No person or agency shall reveal to
the father or anyone on his behalf R’s school or whereabouts
pending the outcome of the application without prior authority
of the court.
2. Children and Family Reporter do file and serve a report
as to residence and contact in respect of R d.o.b 05 August
1997 by 17 June 2002.
3. Applicant father do file and serve statement by 8 July
2002.
4. Respondent mother do file and serve a statement in reply
by 22 July 2002.
5. List for hearing before a Family Circuit Judge on the first
open date after 29 July 2002 with a time estimate of 1 day
that is Wednesday 31 July 2002 @ 10:30am.
6. Children and Family Reporter do attend the hearing unless
notified by both parties not less than 7 days prior to the
hearing that attendance is not needed.
7. Costs in the application."
26. The CAFCASS officer attempted to arrange an interview
with Mr B for 18 June 2002. Mr B asked for financial assistance
in order to attend an interview, alternatively that he should
be interviewed in Scotland. Mr B was offered the equivalent
of a return coach fare from Aberdeen, but by the time the
CAFCASS officer reported on 9 July 2002, no interview had
taken place and the CAFCASS officer was "most uncertain"
as to whether or not Mr B wished to pursue his applications
in the County Court. The impression gained by the CAFCASS
officer was that Mr B was intent on endeavouring to move the
matter to a Scottish court That was, I think, an accurate
impression, and is consistent with paragraph 21 of Mr. B’s
affidavit sworn on 18 March 2002 (set out at paragraph 24
above).
27. However, the clear outcome of the CAFCASS officer’s
enquires was his opinion that there was "substantial
evidence that R (was) thriving in her present situation".
As a consequence, for there to be a change to the current
orders, Mr B would have to provide the court with credible
independent evidence that a change would be in R’s best
interest. On the evidence available to him, the CAFCASS officer
recommended no change in the residence order. If Mr B was
to decide that he wished to continue to apply for a contact
order, the CAFCASS officer recommended that the matter be
adjourned for a further three months so that he could interview
Mr B in London. The CAFCASS officer emphasised the location
because if contact was to develop, he envisaged one option
was that there would be a period of time when it might be
supervised at a specialist contact centre in Central London.
Mr B’s agreement to engage in such a process with its
commitment in terms of time and finance would, he said, be
necessary.
28. In the light of the CAFCASS officer’s report, the
District Judge on 19 July 2002 vacated the hearing fixed for
31 July 2002, directed the parties to file further evidence
and the CAFCASS officer to file and serve an addendum to his
report by 31 October 2002. The District Judge listed the matter
for 12 November 2002 before a Family Circuit Judge, and directed
that the CAFCASS officer attend the hearing. He also directed
Mr B to hand over R’s passport to her mother.
29. On 16 November 2002, Mr B swore a statement in the English
proceedings. This sets out the history of the matter from
his perspective. I do not propose to set out the terms of
this document. It is sufficient to record that Mr B asserts
that all the orders hitherto obtained in the English proceedings
were obtained by "fraudulent means"; and that he
accuses all the lawyers in the case as well as the social
workers the police and the court of failing his daughter.
He says: "All authority’s have failed abysmally
by conspired at the material times to let them down"
[sic]. He also says that Mrs. B’s untruths deprived
him of Legal Aid funding.
30. The CAFCASS officer reported again on 12 November 2002.
By this time he had visited Mr B in Aberdeen, and had read
a number of documents, which Mr B provided for him. So stark
were the issues of fact between R’s parents that the
CAFCASS officer recommended a hearing as to findings of fact,
but subject to that, remained of the opinion that R should
not be removed from her present settled environment unless
there was considerable concern about her present situation
– which, in the CAFCASS officer’s view there was
not.
31. On 12 November 2002 Mr B’s application came before
His Honour Judge Copley. Mr B appeared in person with a Mackenzie
friend: Mrs B was represented by counsel. The judge made an
order for contact between R and her father at a contact centre
and / or at the offices of the CAFCASS officer. There was
a variety of additional directions, including one that Mr
B file and serve his statement as to residence and contact
by not later than 3 December 2002. Additional directions made
by the judge timetabled the case for final hearing on 17 February
2003 with a time estimate of one day. The CAFCASS officer
(who was to provide an addendum report dealing with residence
and contact) was to attend the final hearing unless notified
that his attendance was not required.
32. Mr B’s response was to issue an Originating Summons
in the High Court under the Child Abduction and Custody Act
1985 claiming that R had been wrongfully removed from Aberdeen
and seeking her return to Scotland. In the Willesden County
Court he sought the transfer of the proceedings to the High
Court on the grounds that he had not been giving a fair hearing
in the County Court and that the "court files had been
missing for two years".
33. The proceedings under the Child Abduction and Custody
Act came before Johnson J in the High Court on 5 December
2002. We have the advantage of a transcript of the judgment
given by the judge dismissing Mr B’s application.
34. In a characteristically succinct and clearly reasoned
judgment, Johnson J recorded the orders made by His Honour
Judge Copley on 12 November 2002, and commented that: -
"The Originating Summons, therefore, can
be said to be superfluous in the sense that the question whether
R shall continue to live with her mother in England or shall
move to leave with her father in Scotland, is one that is
to be determined in the existing proceedings."
35. The judge then went on to consider Mr B’s case that
R was to be regarded as a Scottish child and that her future
should be resolved by the courts of Scotland. He set out the
terms of Section 41 of FLA 1986 and continued: -
"Parliament’s objective in passing
this Act is, I think, obvious. However, this provision applied
only for the first year following the change of residence.
I do not want to speculate about the reason for that provision.
The practical effect for R, however, was that from the date
of her removal in September 2000 for a year she was still
to be regarded as habitually resident in Scotland. But, in
my view, since the expiration of that period of one year,
her habitual residence has come to be in England.
However, 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.
Now the fact is the proceedings in England have been in progress
for some time - Mr B says for too long. Be that as it may,
and I do not want to pass any comment about the progress that
the proceedings have made or the manner in which they have
been conducted, the fact is that provision has now been made
for a hearing to decide this important question: shall R live
with her father in Scotland, or her mother in England?
It does not seem to me that there is any advantage to R or
to her father in adding these new proceedings to the existing
proceedings, that there is nothing that the court could do
under this new Originating Summons that it cannot do under
the proceedings initiated under the Children Act. For that
reason it seems to me undesirable that there should be two
sets of proceedings and I therefore dismiss the father’s
Originating Summons. In doing so, I emphasise to him that
he must do everything that is required of him to achieve this
hearing next year.
Whether R is to remain with her mother or to move to her father
in Aberdeen, the sooner the decision can be made the better.
Continuing delay is upsetting for all those around R, and
that must have repercussions for her. A decision is necessary."
36. I respectfully and entirely agree with Johnson J’s
analysis. It is wholly apparent that, although he makes a
reference to "in whichever country the decision falls
to be made" the judge envisaged what he described as
"the important question" being determined in England.
He tells Mr. B that he must "do everything that is required
of him to achieve" the hearing fixed for 17 February
2003. Indeed, at that point, there were no alternative proceedings
on foot.
37. However, on 17 December 2002, when the matter was listed
for further directions in the Willesden County Court Mr B
appeared in person, and Mrs B was represented by a solicitor.
Judge Copley gave permission to Mr B to withdraw his application
for residence, but directed him to file and serve a statement
as to contact by not later than 3 January 2003. The proceedings
were transferred to the Principal Registry of the Family Division
in London: the CAFCASS reporter was to file an addendum report:
and various other directions were given including a direction
that Mr B lodge R’s passport with the Principal Registry.
38. In pursuance of Judge Copley’s directions, the CAFCASS
officer filed a report on 10 February 2003, expressing uncertainty
about Mr B’s position. Mr B had not lodged R’s
passport with the Principal Registry and as a consequence
no arrangements had been made to facilitate contact. The CAFCASS
officer’s inquiries indicated that R was progressing
satisfactorily, and he reported that on 16 January 2003 Mrs
B had been given indefinite leave to remain in the United
Kingdom. However, until Mr B clarified his intentions, CAFCASS
was not in a position to progress the matter.
39. Mr B’s next step was to institute divorce proceedings
in Scotland. He was, of course entitled to do so, and the
Scottish court undoubtedly had jurisdiction to entertain them.
On 27 January 2003, in accordance with Scottish procedure,
the initial writ in the divorce proceedings was put before
the Sheriff. The Sheriff refused to grant a warrant to cite
Mrs B on the basis that the Scottish court did not have jurisdiction
in relation to R.
40. Mr B appealed that decision to the Sheriff Principal,
Sir Stephen Young QC, who allowed the appeal on 24 February
2003 and granted a warrant to cite Mrs B. He did so on the
grounds that the Sheriff ought not to have refused to grant
the warrant to cite Mrs B on the ground of no jurisdiction
unless there was a patent defect of jurisdiction. The Sheriff
Principal was further of the opinion that it was at least
arguable that the Scottish court did have jurisdiction to
make orders in relation to the child in terms of Section 10(1)
of Domicile and Matrimonial Proceedings Act 1973, Section
13 of FLA 1986 and Section 12(1) of the Children Act (Scotland)
1995. In a subsequent judgment, given on 20 January 2004,
the Sheriff Principal said of this decision: -
But of course it is one thing to say that this
court may have jurisdiction to make orders in relation to
the child (which was all that was required to entitle the
pursuer to get the action underway) and quite another to say
that it does have jurisdiction or, even if it does, that it
should exercise that jurisdiction (in particular when the
child has been residing for a considerable time in England).
I drew attention to these matters in the final paragraph of
my note where I stated: -
In so doing (that is, in granting the warrant to cite the
defender) I emphasised to the pursuer that the question of
jurisdiction was still an open one to be determined, if need
be, at a later stage in the proceedings. I also pointed out
that the Sheriff might have to consider the possibility of
a sist (the equivalent to a stay of proceedings in English
law) in light, for example, of Section 11 and Schedule 3 of
the 1973 Act and Section 14 of the 1986 Act. I drew attention
too to the difficulties that the pursuer might face so long
as he remained in ignorance of the defender’s whereabouts.
41. The Sheriff Principal’s order was, accordingly,
that Mrs B was to lodge a notice of intention to defend with
the Sheriff clerk at Castle Street Aberdeen if she wished
to challenge the jurisdiction of the Scottish court / oppose
any claim/ make any claim.
42. Meanwhile, in England, Mr B applied for permission to
appeal the order made by Johnson J. The application was refused
on paper by Thorpe LJ on 20 March 2003, and 7 April 2003 Mr
B’s renewed application was refused by Thorpe LJ in
court. Thorpe LJ adhered to his view expressed on paper that
Mr B’s issue of an Originating Summons under the Child
Abduction and Custody Act had been misconceived and that Johnson
J had been fully justified in dismissing it. Thorpe LJ articulated
the undesirability of any jurisdictional conflict between
the Sheriff’s court in Scotland and the County Court
in England and Wales and made it clear that if the case gave
rise to any difficulties or conflict between the two jurisdictions
it would be open to the judges of the respective courts to
communicate directly in order to reach an agreement as to
the jurisdictional boundaries between them.
43. On 8 April 2003, Mr B issued the application, which came
before Sumner J on 22 August 2003. We do not have details
of the relief sought in our papers, but the judge records
it as an application "to discharge all previous orders
made in proceedings in England concerning (R) and to transfer
further hearings to Scotland".
44. On 11 April 2003 Deputy District Judge Todd in the Principal
Registry transferred that application to the High Court together
with Mr B’s application for a contact order, and 5 June
2003 Holman J gave careful directions for the hearing before
Sumner J on 22 August 2003, the terms of which it is unnecessary
to set out.
45. In the meantime, in the Scottish divorce proceedings,
Sheriff Harris on 2 May 2003 granted a motion, opposed by
Mr B, to allow Mrs B further time for her " notice of
intention to defend" to be received, although it was
late. On the same day, the Sheriff fixed 30 May 2003 as a
child welfare hearing and assigned 27 June 2003 as the date
for what is known in the Scottish procedure as the "options
hearing".
46. On 30 May 2003 Sheriff Buchanan continued the child welfare
hearing to the date fixed for the options hearing namely 27
June 2003 and directed that Mrs B appear personally on that
date. Mrs B was not present on 30 May 2003, but was represented
by a solicitor. Sheriff Buchanan wrote a note explaining his
decision in the following terms: -
"I continue the child welfare hearing to the options
hearing on 27 June for four main reasons: -
1. To allow (Mrs B) to be present. She was unable to afford
to travel from London to Aberdeen for the hearing today but
I stated that she would have to attend next time.
2. To allow the proceedings in England to be progressed.
3. To allow issues such as jurisdiction and forum non conveniens
to be considered carefully on both sides prior to the options
hearing which is, of course, an important procedural stage
of the case and the appropriate point at which to decide how
best to progress the action. This case is a procedural minefield
and a child welfare hearing is not the correct time to determine
technical issues. In any event, I did not consider it appropriate
at this stage to make any orders, which might be inconsistent
with the residence order, granted in favour of (Mrs B) at
Willesden County Court.
4. To allow (Mr B) to take further steps to obtain Legal Aid
for this case."
47. On 3 June 2003, Mrs B lodged a motion in the Scottish
proceedings in which she asked the court to discharge the
options hearing and sist (stay) the cause to allow her Legal
Aid application to be determined and to allow the English
court proceedings between the same parties and in respect
of the same child to be concluded. A hearing on this motion
took place before Sheriff Harris on 13 June 2003. For reasons,
which are unclear to me, Mrs B applied for the motion to be
withdrawn, and it was.
48. At the combined continued child welfare hearing and options
hearing on 27 June 2003 in the Scottish proceedings, both
parties were personally present. Sheriff Cusine presided.
Both parties had solicitors with them. The Sheriff continued
the options hearing until 9 July 2003, and excused the non-attendance
of the parties on that date.
49. On 9 July 2003 the case was called again before Sheriff
Harris. Both parties were represented by solicitors. At the
conclusion of the hearing, the Sheriff pronounced an interlocutor
as follows: -
"The Sheriff ex proprio motu, discharges
the continued options hearing fixed for today and thereafter;
sists the cause for the matter to be determined in England."
50. Mr B appealed. His note of appeal was in the following
terms: -
"Despite orders made by the Sheriff Principal,
Sheriff Buchanan and Sheriff Cusine stating proceedings would
be continuous in the Scottish court and the matter will not
be sisted. Sheriff Harris has sisted proceedings. Aberdeen
Sheriff Court has primacy over the English court actions given
this is a divorce action and the issue of residence has been
raised in these proceedings. Furthermore, Sheriff Buchanan
said at the hearing of 30 May 2003 that the Scottish courts
have the power to not recognise the orders of foreign courts.
"English courts are foreign courts" Scottish courts
have the power to effectual ignore English orders [sic])".
51. In accordance with the Scottish procedure, Sheriff Harris
wrote a note in response to the pursuer’s appeal in
the course of which he said: -
"I was informed that there are proceedings
relating to the child pending before the Family Division of
the High Court of Justice in England and that a hearing is
fixed for 22 August 2003 at which a final determination of
the English action is expected.
In these circumstances I was of the view that it would not
be appropriate to fix a date, or indeed, to determine any
future procedure, while pending proceedings relating to the
child are at an advanced stage in another jurisdiction. Accordingly,
I discharged the continued options hearing and sisted the
cause to await the outcome of the English action.
With regards to the grounds of appeal I would comment that
I am unaware of any "order" by the Sheriff Principal
or any other Sheriff that this cause " will not be sisted".
On reading of the Sheriff Principal’s note attached
to his decision dated 24 February 2003 he is of the view that
"…. The Sheriff might have to consider the possibility
of a sist…. ", also, I would respectfully disagree
with the basis for the appellant’s statement that "Scottish
courts have the power to effectual [sic] ignore English orders."
52. On 22 August 2003, in the High Court of Justice in England,
Sumner J heard Mr B’s application and reserved judgment
to 29 August 2003. As I have already recorded, he dismissed
Mr B’s application, and directed that a copy of his
judgment be sent to the Sheriff’s court in Aberdeen.
On 1 September 2003 Mr B filed a notice of application for
permission to appeal.
53. On 9 September 2003 Mrs B, given the uncertain status
of the residence order made in the Willesden County Court
on 29 November 2000, reapplied in the High Court for a residence
order in relation to R.
54. On 30 October 2003, Ward LJ granted Mr B permission to
appeal on the jurisdiction issue. The application for permission
was, of course, a hearing without notice to Mrs B and those
advising her. In a generous attempt to assist Mr. B as a litigant
in person, Ward LJ identified two possible arguments as being
open to Mr. B. The first was that if jurisdiction had been
once wrongly taken by the English court by the issue of the
proceedings, which resulted in the order of 29 November 2000,
then those proceedings were "forever tainted with that
lack of jurisdiction". The second was what Ward LJ described
"as another highly technical argument" namely that
if the issue was "the pure, dry legal issue of jurisdiction
then perhaps that not being a question relating to the upbringing
of a child, Section 1 of the Children Act does not apply and
the welfare of the child is not the paramount consideration
of the court as Sumner J treated it to be".
55. It is quite clear, that Ward LJ – correctly in my
view – considered that there was nothing in either point.
The reason he gave permission was different. He said: -
" 11. If the matter had stood there I would
have dismissed this application, but Mr B whose passion is
obvious, has applied to the Scottish courts for orders, and
in his written submissions to me, which he read to me this
morning, he records the Sheriff in Aberdeen observing, and
I have no doubt accurately, that the Court of Session does
have the power not to recognise orders of a foreign court,
the courts of this country being treated for that purpose
as foreign courts.
12. At the moment I am told those proceedings are stayed or
sisted, though I am not entirely sure why. I am not entirely
sure that the Scottish court does in fact see that this is
some challenge to its power to act as it can, but it seems
to me that it would be most unseemly for the Court of Session
to be engaged in a territorial turf war with the High Court
of Justice in England. Quite exceptionally, therefore, I will
give permission on the question of this jurisdictional issue
because if there is doubt as to which court should be dealing
with the matter, that constitutes a compelling reason for
the court of appeal to become involved. I do so with reluctance…."
56. Ward LJ’s judgment granting permission was given
on 30 October 2003. At that point, in Scotland, the matrimonial
proceedings were, of course, sisted by order of Sheriff Harris
made on 9 July 2003 (see paragraph 49 above). Mr. B had appealed
that order. It is quite clear from the extract from Ward LJ’s
judgment which I have cited that he was not aware of the contents
of Sheriff Harris’ note (which I have set out at paragraph
51 above) and the Sheriff’s express disagreement with
Mr. B’s proposition that the "Scottish courts have
the power effectual (sic) to ignore English orders".
It is transparently clear from the record of the Scottish
proceedings that at no stage have the Scottish courts perceived
themselves as being in competition, or engaged in a "territorial
turf war" with the High Court of Justice in England.
Nor, of course, would Ward LJ have thought so had he been
placed fully in the picture.
57. On 15 December 2003 Mr B made an emergency application
for all orders of the Willesden County Court to be dismissed
on the grounds that they were "fraudulently obtained".
On 18 December 2003, that without notice application was refused
by District Judge Bradley in the Principal Registry. It appears
that Mr B made a further application on 5 January 2004 to
the Principal Registry, the terms of which are unknown to
us.
58. On 20 January 2004 Mrs B’s application for residence
dated 9 September 2003 was adjourned pending the outcome of
the current appeal.
59. On the same day, the Sheriff Principal, Sir Stephen Young
QC, gave judgment in Mr B’s appeal against Sheriff Harris’s
sist of the Scottish proceedings ordered on 9 July 2003. In
a full and very careful judgment, of which we have a transcript,
the Sheriff Principal dismissed the appeal and continued the
stay (sist). Having recited the history both of the English
and the Scottish proceedings, the Sheriff Principal continued
–
"15. Opening his appeal, (Mr B) began by
launching an attack against (Mrs B’s) agents who, according
to him, had deliberately misled this court about what was
being done about (Mrs B’s) application to the Scottish
Legal Aid Board to grant Legal Aid to her for the purposes
of the appeal with the result that there had been unnecessary
delay in fixing this. In a nutshell, Mr B maintained that
these agents had been guilty of either contempt of court or
perjury, and that I should deal with them accordingly.
60. Having recorded Mrs B’s solicitors’ response
(namely a failure on the part of the Scottish Legal Aid Board
to respond to letters) and Mr B’s assertion that the
solicitors were not telling the truth when they asserted that
they had written to the Board, the Sheriff Principal said
he would enquire into the matter but that it had no bearings
on the merits of the appeal.
61. The Sheriff Principal then set out Mr B’s case with
great care. Having then set out Mrs B’s response, he
concluded as follows: -
"24. It should be clearly understood that
the only issue which arises in this appeal is whether or not
the Sheriff’s decision on 9 July 2003 to sist in the
present action should be reversed. This decision was made
by the Sheriff in the exercise of his discretion, and it is
well settled that an appellate court may only interfere with
such a decision if it is shown that the court of first instance
has misdirected itself in law, misapprehended the material
facts, taken into account an irrelevant fact, left out of
account a relevant factor or reached a decision which may
be categorised as wholly unreasonable or plainly wrong. In
certain situations an appellate court may also interfere if
additional material has come to light, which was not before
the court of first instance or if there has been a material
change of circumstances since it made its decision. Unless
one or more of these grounds are established, it is nothing
to the point that the appellate court might have reached a
different decision on the facts from that which was reached
by the pursuer both in his Skeleton Argument and in the course
of the hearing on 8 January 2004. It will be observed that
he said nothing at all about wanting to pursue his crave for
a decree of divorce against the defender. In the circumstances
I am quite unable to hold that he has made out any ground
upon which I could properly interfere with the decision of
the Sheriff. Indeed, I will go further and say that I think
that his decision to sist the present action in light of what
was then the forthcoming hearing in the Family Division in
London, which had been fixed for 22 August 2003, was entirely
sensible in the circumstances. I have therefore refused this
appeal. Of course matters have moved on since then, and it
is always open to the pursuer at any time to apply to the
Sheriff by motion to recall the sist, and it would then be
for the Sheriff to determine the application in light of the
prevailing circumstances. But, without seeking to fetter the
Sheriff’s discretion in the event of such an application
being made, I think it is only right to suggest to the pursuer
that he ought to consider whether he is being realistic in
hoping that this court would take it upon itself to make any
order in relation to his child so long as there are proceedings
involving the welfare of the child continuing in the courts
in England. (My emphasis)
25. In any case it may be of assistance to the Judges of the
High Court of Justice in England, I have asked that a copy
of this judgment should be sent to the Royal Courts of Justice.
And in this context I may perhaps observe that I notice the
concern of Lord Justice Ward in paragraph 12 of his judgment
dated 30 October 2003 in which he stated "it seems to
me that it would be most unseemly for the Court of Session
to be engaged in a territorial turf war with the High Court
of Justice in England". So far as I am aware, the proceedings
in Scotland in relation to this child have been confined to
the Sheriff court here in Aberdeen, and the Court of Session
has had nothing to do with the matter. More importantly, it
seems to me that it was precisely in order to avoid such a
"territorial turf war" that the sheriff thought
it right to sist the present action on 9 July 2003. There
are in fact provisions to be found in sections 25-32 of the
Family Law Act 1986 in regard to the recognition and enforcement
in one part of the United Kingdom of orders about the welfare
of a child made by a court in another part of the United Kingdom."
62. I would like to pay tribute to the full and careful judgment
of the Sheriff Principal in this case. In my judgment, it
is a model of clarity and good sense. It demonstrates the
mutual respect which the English and Scottish courts have
for each others’ jurisdictions, and by continuing the
stay of the Scottish proceedings it recognises the overwhelming
reality that the proper forum for the determination of issues
relating to R is the High Court of Justice in England and
Wales.
The judgment of Sumner J
63. Ironically, it seems to me that a recitation of the procedural
history in this case answers the questions raised in this
appeal almost without reference to the clear judgment of the
judge in the court below. However, the fact that this court
is able to understand the proper structure of the case is
in large measure due to the care with which Sumner J unravelled
the proceedings.
64. In particular, I am grateful to Sumner J doing something
that he did not need to do. Mr B appeared in person before
Sumner J, who reserved his judgment, and put it into writing.
It was therefore immediately available to Mr B and to the
courts both in England and Scotland. It thus stands as a bench
mark both for the Scottish and the English courts in their
understanding of the proceedings and his reasons for concluding
that R’s future should be decided in England. In these
circumstances, it is only right that I should record his conclusions
in full. I begin, however, at the paragraph which precedes
them: -
"45. In all (Mr. B) exhibits just over
100 pages of letters and statements. They go as far to show
the extent to which the father has taken his sense of grievance.
They are of less assistance in showing that his real interest
is in R and establishing or re-establishing his relationship
with her. I have glanced at them. It is sad to see so much
energy going into complaints about others and so little time
spent on ensuring that whatever misfortunes he may have suffered,
he can rise above them and help his daughter.
Conclusions
46. The father is no longer pursuing his application for a
residence order. He seeks contact. The only terms upon which
he is prepared to consider that is if R is in Scotland and
proceedings continue there. He will not entertain seeing R
in England. The result is that he has deprived himself and
more importantly R from a relationship since September 2000.
47. He has not cooperated latterly with CAFCASS. He has withdrawn
undertakings in relation to a passport. He has sought to withdraw
others unsuccessfully, which stopped him seeing R at school.
He threatened the school in January 2003 that he would use
force to do so. I pursued that with him in court in order
to see if I could assist in ensuring he had contact with R.
He was not interested in that. He says he has lost the passport.
I suggested means whereby that difficulty could be resolved.
It was not to be.
48. The father’s burning sense of injustice and obduracy
means that he cannot come to terms in any way with R’s
present position. Rightly or wrongly the fact is that she
has now been settled with her mother in South East London
for 3 years. She is doing well. Difficulties in journeys for
contact by the father from Scotland could be overcome despite
his debts.
49. He is returning for this judgment. I sought unsuccessfully
because of his resistance to ensure he could see R meanwhile.
His blinkered approach means that he will not consider whether
R is or is not settled here and whether it is or it is not
now to her advantage to move to Scotland. Assuming that he
is right in saying the mother was wrong to leave Scotland,
not to disclose her address, and that she wrongly obtained
a residence order, I have to deal with the position as it
is today.
50. On the basis of what is in R’s best interests because
her welfare is my primary concern, the father must put forward
some arguments about why R’s present situation should
be upset. The fact that the mother took R from Scotland, that
she is a Scottish child, and that a court made an incorrect
order, are not now good enough reason to either move R or
the proceedings to Scotland. Nor is his declaration that he
will only see her there.
51. Having read through so much of the papers and seen the
father it is likely that, despite his deep feeling of being
wronged, he may have much to offer R, which would be to her
advantage. I hope that however buffeted he feels by fate and
however badly he considers he has suffered at the hands of
English courts, he will not lose sight of his primary responsibility
and obligations to her which as a father he should meet. It
is not easy to see why she should not feel abandoned by him.
52. The father asked me to transfer future proceedings to
Scotland. In effect he invites me to put the same stay on
proceedings here as the Aberdeen Sheriff’s court did
on proceedings there last month. He was earlier content to
argue residence and contact here. He had an order for contact
last November. He was represented and withdrew his application
for residence in December. He was present in the Court of
Appeal in April 2003.
53. I see no good reason to do so. The present position is
that R, now just 6 years of age, has spent half her life living
with her mother in England. The mother obtained a residence
order in her favour within a year of leaving Scotland. This
could not lawfully be done under statutory provision, which
are not well known. I accept that keeping R’s address
hidden does not reflect well on the mother. But the father
was able to trace her when he applied to court.
54. After a year the mother could have properly brought proceedings
in England. They have in fact taken place here. The father
has participated. CAFCASS reports have been prepared, and
the father no longer disputes R residing with mother. I have
not seen the signs of corruption and conspiracy of which the
father speaks in going through the papers.
55. The father has shown that he can obtain funding to attend
the High Court in London. There is no aspect of his claim,
which cannot be ordered by this court. That would include
directing the mother to take R to Scotland for contact with
father if that was in her best interests. The contact could
be for a short or a longer time.
56. It is inconvenient for father to attend courts in England
but it has not stopped his attendance. It is more inconvenient
for mother to attend court in Scotland when she has the care
of R with her disabilities.
57 I see no sufficient factor, which would be in R’s
interest nor on the balance of convenience to the parties
to order that the mother may no longer litigate in England.
All the arguments go the other way. The mother lives here
and has been involved in litigation with the father here for
more than 2 years. I see no reason to change that now.
58. That means I should dismiss the father’s present
application. That does not prevent him seeking any other order
in this court nor prevent him seeing R by agreement or as
a result of a court order.
59. It does bring this hearing to a conclusion. I am aware
that the father may now renew such proceedings in Scotland
as he chooses and the court permits. I will discuss with him
a proposal that the Sheriff’s court in Aberdeen may
find it helpful to see this judgment so that the background
to any further application in that court by the father is
more readily understood."
The law
65. Mr B’s argument that - as Ward LJ formulated it
- "if jurisdiction was once wrongly taken by the English
court by the issue of the proceedings which commenced this
litigation then the proceedings are forever tainted with that
lack of jurisdiction" does not bear examination. All
section 41 of FLA 1986 does is to treat a child in R’s
situation as habitually resident in Scotland for the period
of one year from the date of her wrongful removal in order
to ensure that the Scottish court retains jurisdiction over
her in any proceeding instituted within that year.
66. As a matter of fact, of course, R plainly became habitually
resident in England some considerable time before September
2001. However, the effect of section 41 is that had Mr B taken
proceedings in Scotland before September 2001, or availed
himself of the liberty to apply contained in the order of
District Judge Morris made on 29 November 2000 at any point
before September 2001 the English court would have been bound
to have discharged its order for residence. For reasons that
are wholly obscure, Mr B neither instituted proceedings in
Scotland nor did he apply to the English court until November
2001, by which time, on any view, the English court had jurisdiction
over R, which it retains.
The status of the order made in the Willesden County Court
on 29 November 2000
67. Whilst made without jurisdiction, the status of the residence
order made by District Judge Morris on 29 November 2000 is
not, perhaps, as cut and dried as might at first sight appear.
It was plainly made in ignorance of section 41 of FLA 1986.
At the same time, Mrs B has parental responsibility for R
as her mother, and R was living with her. The order was made
in proceedings under the Children Act 1989 between R’s
parents. According to Section 8 of the Children Act 1989 the
order was one which, albeit made without notice and being
thus temporary, "settle (d) the arrangements to be made
as to the person with whom the child is to live".
68. In my judgment, although made without jurisdiction, the
order was not a nullity. The normal rule about orders which,
on their face, are regular, but which are in fact made without
jurisdiction is that they remain in force until such time
as they are discharged: - see Hadkinson v Hadkinson [1952]
285, 288 per Romer LJ: -.
It is the plain and unqualified obligation of
every person against, or in respect of whom, an order is made
by a court of competent jurisdiction, to obey it unless and
until that order is discharged. The uncompromising nature
of this obligation is shown by the fact that it extends even
to cases where the person affected by an order believes it
to be irregular or even void. "A party who knows of an
order, whether null and void, regular or irregular, cannot
be permitted to disobey it …. It would be most dangerous
to hold that the suitors, or their solicitors, could themselves
judge whether an order was regular or irregular. That they
should come to the court and not take upon themselves to determine
such a question: that the course of a party knowing of an
order that was null and irregular and who might be affected
by it was plain. He should come to the court that it might
be discharged. As long as it existed it must not be disobeyed."
(Per Lord Cottenham LC in Chuck v Cremer (Cooper temp. Cott.
205,338).
69. The same principle is enunciated in the Privy Council
case of Grafton Isaacs v Emery Robertson [1985] 1 AC 97, 101E-F
to 102C per Lord Diplock and (in relation to undertakings)
in the decision of this court in Johnson v Walton [1990] 1
FLR 350. In my judgment, therefore, although made without
jurisdiction, the order of 29 November 2000 stands until such
time as it is discharged.
70. On the facts of this case, section 41 of FLA 1986 ceased
to have effect in September 2001: thereafter the English court
had jurisdiction over R. Mr B made an application to the English
court for relief, and the English court has remained seized
of the case ever since. There is, accordingly, in my mind
no doubt whatsoever but that the English court has jurisdiction
to make orders under the Children Act in relation to R.
71. I would therefore answer the first question posed in paragraph
1 of this judgment in the affirmative.
What is the effect of the subsequent Scottish divorce proceedings
on the English Children Act proceedings?
72. I therefore turn to the second question. What effect does
the institution of the Scottish divorce proceedings have on
the English proceedings under the Children Act 1989? Does
the institution of divorce proceedings in Scotland by Mr.
B deprive the English courts of jurisdiction? And if not,
should the English court nonetheless decline to exercise its
jurisdiction in order for the issues between Mr and Mrs B
relating to R to be heard by the Sheriff in the Scottish divorce
proceedings?
73. The first point is, as the Sheriff Principal held, that
the Scottish court plainly has jurisdiction to entertain divorce
proceedings between Mr and Mrs B based on Mr. B’s habitual
residence / domicile in Scotland, and the institution of those
proceedings plainly gives the Scottish court jurisdiction
to make orders in relation to R. However, in my judgment,
the Sheriff Principal was equally correct when he stated that
it is one thing to say that the court may have jurisdiction
and quite another to say that it does have jurisdiction or
that even if it does, it should exercise that jurisdiction.
74. There are, in my judgment, two clear reasons why the Scottish
court does not currently have jurisdiction to make orders
in relation to R in the Scottish divorce proceedings. The
first is that for a jurisdiction to exist, the proceedings
in Scotland must be "continuing" (see FLA 1986 Section
2A(2)). In my judgment the proceedings are not "continuing"
because they have been stayed by the order of Sheriff Harris
on 9 July 2003, his decision being upheld on appeal by the
Sheriff Principal on 20 January 2004. It will be recalled
that the interlocutor pronounced by the Sheriff was that he
"sists the cause for the matter to be determined in England"
(see paragraph 49 above).
75. The second reason simply echoes the first. Section 13(6)
of FLA 1986 states: -
"A court in Scotland which has jurisdiction
in matrimonial proceedings to entertain an application for
a (Part 1 order) with respect to a child may make an order
declining such jurisdiction if -
(a) it appears to the court with respect to the child that
….
(ii) but for Section 3(2), 6(3), 20(2) or 23(3) of this Act
a court in another part of the United Kingdom would have jurisdiction
to make a Part 1 order or an order varying a Part 1 order;
and
(b) the court considers that it would be more appropriate
for Part 1 matters relating to that child to be determined
in that other court or part."
76. The references to Section 3(2), 6(3), 20(2) and 23(3)
are to continuing matrimonial proceedings in Scotland or Northern
Ireland. The sist imposed by Sheriff Harris and upheld by
the Sheriff Principal is a manifest demonstration of the Scottish
court declining jurisdiction, a decision with which I respectfully
agree. There is, accordingly, in my judgment, an effective
agreement between the two jurisdictions that the proper forum
for proceedings relating to R is England and Wales.
The arguments advance on behalf of Mr. B
77. For Mr B, Mr Nicholas O’Brien has done his best
to make bricks without straw, and has sought manfully to reformulate
Mr B’s highly unattractive submissions in a forensically
acceptable way. He describes the purpose of FLA 1986 as being
to prevent jurisdictional disputes concerning children whose
parents move them from one part of the UK to another. He correctly
summarises the effect of Section 41 of FLA 1986. However,
he describes the effect of Sumner J’s refusal to discharge
the order of District Judge Morris dated 29 November 2000
as having the effect that R’s residence is governed
by an ultra vires order which, he submits, is repugnant to
the purposes of forum conveniens established by FLA 1986.
Accordingly, he argues, the order should be discharged and
the matter considered on its merits by a court in Scotland
(or at least on Mrs B’s new application in England)
free from the distorting effect of jurisdictional issues.
For the reasons I have already given, I cannot accept this
argument.
78. Mr. O’Brien goes on to submit that District Judge
Morris’ order had the improper effect of the English
court becoming the forum for disputes because Section 14 of
FLA 1986 has the effect of requiring a parent living in one
jurisdiction to make any applications in the country where
an issue has already been decided. Accordingly, he argues
that Mr B was precluded from making any application concerning
R in Scotland as the residence order "settled the arrangements
as to where the child shall live".
79. I have no hesitation in rejecting this submission. All
Section 14(1) of FLA 1986 does is to give a court in Scotland
which has jurisdiction to make a residence order the discretion
to refuse to entertain an application in any case where the
matter in question has already been determined in other proceedings.
It also gives the Scottish court the power to stay or sist
proceedings for residence or contact where there are proceedings
relating to the same subject matter continuing outside Scotland
or in another court in Scotland or where it would be more
appropriate for those matters to be determined in proceedings
outside Scotland or in another court and proceedings are likely
to be taken there.
80. In my judgment, section 14 is of no relevance prior to
September 2001. As I have already stated, if Mr B had applied
to the English or Scottish courts prior to September 2001
this Scottish courts would have had jurisdiction, and the
English court would have had no alternative but to discharge
the residence order made on 29 November 2000. Section 14 would
not have prevented Mr. B making that application.
81. Mr O’Brien urges us to attach no significance to
the terms of the application issued by Mr B in the Willesden
County Court on the 1 November 2001. It is clear, Mr O’Brien
submits, that Mr B wished to challenge the wrongful assumption
by the English court of jurisdiction over R: this had been
made very clear by Mr B both at the hearing on 22 February
2002 and in his evidence in the English proceedings.
82. As I indicated earlier, this court cannot adjudicate in
relation to what may or may not have occurred between Mr B
and his advisers. The simple fact of the matter is that (a)
the English court had jurisdiction after September 2001 and
(b) Mr B made an application to the court on which the court
has proceeded. The only reason the Scottish court did not
take jurisdiction was because Mr B failed to invoke it before
September 2001. As both the Scottish and the English jurisdictions
are now agreed, R has been living in England for the best
part of four years, and England is the obvious place for her
future to be decided.
83. Mr O’Brien criticises Sumner J for considering the
balance of convenience. He submitted this amounted to a continuing
wrong done to Mr B simply because it had taken so long to
have the issue of jurisdiction considered. Insofar as he considered
that it was more inconvenient for Mrs B to litigate in Scotland
than for Mr B to litigate in London, the judge was relying
on something, which could not have been a legitimate consideration
in November 2000. At that point, Mrs B was required to proceed
(if at all) in Scotland. Therefore, Mr O’Brien submitted,
she should not have been treated as entitled to that advantage.
84. I do not understand this argument. As I have now said
several times, jurisdiction vested in the Scottish courts
up to the end of September 2000. Up until that point, Mrs
B would have had to have litigated in Scotland had Mr B instituted
proceedings there or applied to discharge the English order.
Now that proceedings have been ongoing in England for more
than three years, it was entirely appropriate for the judge
to consider the forum conveniens argument, and to take into
account the fact that, as the carer of a Down Syndrome child,
it would be more difficult for Mrs B to litigate in Scotland
than for Mr B to litigate in England.
85. Finally, Mr O’Brien referred us to the case of M
v M (Abduction: England and Scotland) [1997] 2FLR 263, a decision
of this court under the Domicile and Matrimonial Proceedings
Act 1973. In that case a married couple went to live in Scotland
with their two children. The father was Scottish: the mother
English. The mother left the family home and took the children
to England without the father’s knowledge. She then
obtained an ex-parte residence order and a prohibited steps
order to prevent the father from removing the children. She
also issued a divorce petition. The Circuit Judge in England
made an ex-parte injunction restraining the father from instituting
proceedings in Scotland. The judge decided that England was
the appropriate jurisdiction for the divorce proceedings.
86. The father appealed and this court allowed his appeal.
It found, first, that the judge had been wrong to decide either
that the children had no habitual residence or that they were
habitually resident in England. Secondly, this court decided
that the grant of an injunction was inconsistent with the
legislative framework provided by the Domicile and Matrimonial
Proceedings Act 1973. By virtue of Schedule 1, paragraph 8(1)
to that Act, if a petition was presented in that part of the
United Kingdom where parties were habitually resident when
they last lived together, then any earlier petition presented
in a different part of the United Kingdom by the other party
to the marriage had to be stayed in favour of the petition
presented in the place where the parties were habitually resident.
Accordingly, Parliament not only permitted the father to present
his petition in Scotland, but expressly provided that if he
did so, the mother’s English proceedings should be stayed,
and the English court should thereafter have no jurisdiction
to make an order under Section 8 of the Children Act 1989
unless it was necessary to do so in order to deal with urgent
matters.
87. Mr O’Brien relied on a number of passages from the
judgment of Butler-Sloss LJ (as she then was) firstly at [1997]
2FLR 268, she said: -
"Accepting that the welfare of the children
is paramount, it is necessary also to accept that the welfare
is normally best served by children returning to be dealt
with by the court of the jurisdiction of their habitual residence,
whether that court returns them from whence they have been
sent or keeps them in that country or elsewhere. It is not
a decision that they should go and live in that country. It
is a decision that the country of habitual residence should
assume jurisdiction to decide on the future of the children.
Those are the general principles upon which the English courts
look at the removal to England of children who should not
have been removed without the consent of both parents"
88. Secondly at [1997] 2FLR 270, discussing the question of
forum conveniens, Butler-Sloss LJ said: -
"The immediate welfare considerations of
the children as to whether it is convenient for the mother
to have to travel to Scotland or to remain in England or whether
the speed of the hearing of the case is in the interests of
the children, which are appropriate for a consideration of
forum conveniens, are not appropriate, in my judgment, to
a consideration as to whether there should be granted an injunction
to frustrate the husband in this case from starting proceedings
in Scotland which looking at it in the light of habitual residence
being Scotland and not in the light of there being no habitual
residence, shows quite clearly that Scotland is the right
place for proceedings to take place. The general considerations
as to the welfare of the children long term will, of course,
be a matter of consideration for the court which is the court
of the jurisdiction of the habitual residence."
89. Finally, at [1997] 2FLR 272, Butler-Sloss LJ concluded:
-
"Consequently the judge was wrong
to keep the case within England and wrong not to state quite
clearly that the children should have the decision as to their
future made in Scotland. So to summarise, the judge should
have found habitual residence in Scotland. He should not have
granted an injunction to impede the issue of the divorce proceedings
in Scotland. He probably should have made for clarity either
a s 2A(4) direction under the 1986 Act or granted a s 5(2)
stay. None of the orders which he has made can, in my view,
stand. Either we have to set them aside or they will die a
death when the husband issues his divorce petition in Scotland."
90. In my judgment, M v M has simply no application to the
present case. There are no concurrent divorce proceedings.
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 has been properly thwarted both by the
courts of Scotland and of England. In M v M, the Statute provided
expressly for the Scottish court to have jurisdiction in the
circumstances of that case. Those circumstances do not apply
here, and the statutory provisions make it quite plain both
that the English courts have jurisdiction, and that the Scottish
courts have a discretion (which they have properly exercised)
to allow the English courts to exercise their jurisdiction.
91. For all these reasons I would dismiss this appeal. I am
in full agreement with the judgment of Sumner J, and in particular
with his view that the sooner the matter R’s future
is finally resolved the better. Mr B has withdrawn his claim
for residence. He has made his contact application immeasurably
more difficult by his refusal to contemplate seeing R anywhere
other than in Scotland, but the English court remains open
to him for his contact application to be adjudicated on its
merits.
92. Two final points. For the avoidance of doubt, I make it
clear that in my judgment when Mrs B issued her application
for residence on 9 September 2003, the Scottish proceedings
were stayed pursuant to the Sheriff’s order dated 9
July 2003, and were not, accordingly, "continuing".
It is necessary to make this point because under Section 3
of FLA 1986, the English court’s jurisdiction is excluded
if "on the relevant date" (that is, 9 September
2003, the date of Mrs. B’s application) matrimonial
proceedings are continuing in a court in Scotland in respect
of the marriage of the parents of the child concerned. In
my judgment, these proceedings are not "continuing"
if they are stayed, as they currently are. Furthermore, the
English court in any event has jurisdiction under the Children
Act 1989 to make an order of its own motion: - see section
10 (1)(b).
93. Finally, Mr Wright argued that by virtue of Section 36
of FLA 1986, the prohibited steps order made by the District
Judge on 29 November 2000 was entitled to recognition in any
event. Section 36 provides as follows: -
"(1) This section applies to any order made by a court
in the United Kingdom prohibiting the removal of the child
from the United Kingdom or from any specified part of it.
(2) An order to which this Section applies shall have effect
in each part of the United Kingdom other than the part in
which it was made –
. as if it had been made by the appropriate court in the other
part, and
a. in the case of an order which has the effect of prohibiting
the child’s removal to that other part, as if it had
included a prohibition on his further removal to any place
except one to which he could be removed consistently with
the order."
94. In my judgment, this Section has to be viewed in the context
of the overall structure of FLA 1986. Both the Court of Session
and the Sheriff are given jurisdiction by virtue of Section
12 to make emergency orders in relation to children if a child
is present in Scotland (or, as the case may be, in the Sheriffdom)
on the date of the application, and the Court of Session or
Sheriff considers that for the protection of the child, it
is necessary to make such an order immediately.
95. So far as England and Wales are concerned, a distinction
appears to be drawn between the county court or family proceedings
court on the one hand and the High Court exercising its inherent
jurisdiction on the other. Thus section 2(3) of FLA 1986 provides
that the High Court in the exercise of its inherent jurisdiction
with respect to children may make a Part 1 order where the
child is present in England and Wales on the relevant date
and the court considers that the immediate exercise of its
powers is necessary for his protection. For the county court
to make such an order, the child has to be present and not
habitually resident in any other part of the United Kingdom
(see paragraph 12 above). There is no provision equivalent
to Section 12 (which deals with Scotland only) in Chapter
2 of the Act, which deals with the jurisdiction of courts
in England and Wales.
96. The difficulty about Mr. Wright’s argument, as it
seems to me, is that a prohibited steps order is also an order
made under section 8 of the Children Act 1989 which, in the
circumstances of this case, the English county court is without
jurisdiction to make. Speaking for myself, I would regard
it as unsatisfactory if the jurisdiction of the English courts
to make protective orders where children were present in England
and Wales but habitually resident in Scotland was limited
to the High Court exercising its inherent jurisdiction. However,
I have read and take the force of what Arden LJ says in her
judgment at paragraphs 101 to 103 below. As it is not necessary
for us to decide the question in the instant case, I would
prefer to leave Mr. Wright’s point open until such time
as it arises directly.
97. This case demonstrates the complexities, which can arise
when prompt action is not taken after a parental separation
involving a move from one part of the United Kingdom to another.
Had its jurisdiction been invoked in 2000, the Scottish court
would, no doubt, have swiftly reached a sensible conclusion
on the issues placed before it. As it is, more than three
years later, it now falls to the English courts finally to
resolve any outstanding questions relating to R.
98. On 20 January 2004 Hedley J adjourned Mrs B’s application
for residence and Mr B’s application of 15 December
2003 to a date to be fixed after the court of appeal hearing
on 22 April 2004, the matter to be restored for directions
within seven days of the Court of Appeal’s judgment,
provided such application is authorised by that judgment.
This is now what should occur.
99. For all these reasons, I would dismiss this appeal.
Lady Justice Arden:
100. I agree that this appeal should be dismissed for the
reasons given by Wall LJ.
101. In his submissions, Mr Wright argued that section 36(2)(a)
of the Family Law Act 1986 (already set out by Wall LJ) would
have saved the order of 29 November 2000 notwithstanding that
it was made without jurisdiction. This provides that an order
shall have effect in the other parts of the United Kingdom
"as if it had been made by the appropriate court of that
part".
102. In any event the Court does not need to deal with this
point because it has relied on the principle in Hadkinson
v Hadkinson, as explained by Wall LJ.
103. However, as the question is one of statutory construction
and thus may be of some importance for future cases, I would
state that in my judgment that this is not its true effect.
The purpose of sub-s (2)(a) is to ensure that the relevant
order will be recognised and enforced throughout the United
Kingdom. There is nothing to indicate that is contemplating
what I trust is a rare occurrence, namely a court of the United
Kingdom seizing jurisdiction, which it did not in fact have.
If Mr Wright’s submission was correct, it would not
be possible for the court to set aside or discharge the order,
which it had made without jurisdiction, which it would normally
be obliged to do. I do not consider that this could have been
the intention of Parliament when it enacted section 36(2).
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