D v D (Custody: Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 10 November 1995 |
| Court | Family Division |
HALE, J
Jurisdiction – custody of children – contested proceedings taking place concurrently in Scotland and England – whether English or Scottish court had jurisdiction.
The mother and father were born and married in Scotland. They had two children who were born there in 1988 and 1990. In 1992 the family sold their house and went to live in Spain. In 1994 they returned to Scotland where they took a vacancy of a flat. The children were enrolled in a school in Scotland.
The marriage deteriorated and in February 1995 the mother left Scotland, taking the children with her, and came to live in England. On 1 March 1995 the father commenced proceedings in Scotland for the custody of the children. On 6 March 1995 the mother applied to a court in England for a residence order. The issue as to the children continued before the courts in both England and Scotland. On 24 April 1995 an interim residence order was made by an English court and on 20 October 1995 an interim custody order was made by a Scottish court.
In the English proceedings a welfare officer reported that the children wished to live with their father in Scotland. This was confirmed in the report of a Scottish social worker.
In July 1995 the children went to stay with the father in Scotland and subsequently remained with him.
In August 1995 the father applied for the English proceedings to be stayed. A district judge refused his application.
The father appealed.
Held – (1) By virtue of the provisions of ss 2(2), 3 and 7 of the Family Law Act 1986, in a non-matrimonial case, a court in England and Wales had no jurisdiction to make an order under s 8 of the Children Act 1989 unless on "the relevant date" the child concerned was either habitually resident in England and Wales or was present in England and Wales and was not habitually resident in any part of the United Kingdom. In the present case "the relevant date" was 6 March 1995 as this was the date on which the mother applied for a section 8 order. As it was not contended by the mother that the children were habitually resident in England (although they were present here) at that time, the issue was whether or not they were habitually resident in Scotland. That was a question of fact to be decided by reference to all the circumstances of the case. In the present case the actions of the family when they left Spain of acquiring a flat in Scotland and putting their children to school there had to be set in the context of all the other connexions which the family had with Scotland. The only common intention which could be deduced from all their
actions was that they intended to settle in Scotland for the time being. In the circumstances the children were habitually resident in Scotland immediately before the mother removed them to England. By virtue of s 41 of the 1986 Act, if a child under 16 was removed from his place of habitual residence without the agreement of everyone having the right to determine where he was to live, then he was to be treated as remaining habitually resident there for one year, even if in fact he became habitually resident elsewhere. The father did not agree to the children's removal from Scotland. Therefore the English court had no jurisdiction to make any order as a result of the mother's application on 6 March 1995.
(2) Further, even if the children were not habitually resident in Scotland before the mother brought them to England in March 1995 they did not acquire a habitual residence in England. It had been held that where both parents had equal parental rights, one parent could not unilaterally change the habitual residence of the children. Whilst there could be no hard and fast rules in this matter it was difficult to see how these children could have acquired a habitual residence while there was actively continuing and unresolved litigation about where they were to live. If there was no habitual residence and no matrimonial proceedings, jurisdiction lay with the country where the children were present on the relevant date. By virtue of ss 6 and 15 of the 1986 Act where an order had been made in one part of the United Kingdom and a subsequent order was made in another part of the United Kingdom the earlier order ceased to have effect. In the present case the later order made in Scotland superseded the earlier order made in England. The English court had no jurisdiction to hear the Children Act application and those proceedings would be dismissed.
Per curiam: Even if the English court did have jurisdiction so that it could exercise its discretion under s 5(2) of the 1986 Act, the balance of convenience lay clearly with Scotland. The children were there, most of the witnesses were there, the whole family was more closely connected with Scotland and the Scottish courts would have jurisdiction in the matrimonial proceedings.
Statutory provisions referred to:Family Law Reform Act 1986, ss 1–3, 7–10, 15 and 41.
Cases referred to in judgment:A (A Minor) (Wardship: Jurisdiction), Re[1995] 2 FCR 298.
AF (A Minor) (Abduction), Re [1992] FCR 269.
B (Minors) (Hague Convention) (No 1), Re[1994] 1 FCR 389.
B (Minors) (Hague Convention) (No 2), Re[1994] 1 FCR 394.
J (A Minor) (Abduction: Custody Rights), Re [1991] FCR 129; [1990] 2 AC 562; [1990] 3 WLR 492; sub nom C v S (A Minor) (Abduction) [1990] 2 All ER 961.
Kapur v Kapur [1984] FLR 920.
M (Minors) (Residence), Re[1993] 1 FCR 718.
R v Barnet London Borough Council, ex parte Shah [1983] AC 309; [1983] 2 WLR 16; [1983] 1 All ER 226.
S (Minors) (Hague Convention: Wrongful Retention), Re[1994] 1 FCR 83.
S (Residence Order: Jurisdiction), Re[1995] 1 FCR 497.
Alexandra Stansby for the father.
Patricia Bailey for the mother.
MRS JUSTICE HALE.This case concerns two young children, a girl who is now 7, and a boy who is now 5. Their father lives in Scotland and their mother lives in England. There are parallel proceedings about them in both jurisdictions. I am asked to decide whether the English courts have jurisdiction to deal with the case, and if they have, whether in any event the forum conveniens for the resolution of the dispute is in Scotland.
The case comes before me as an appeal from District Judge Flanagan who on 3 August 1995 refused the father's application for the proceedings here, under the Children Act 1989, to be stayed. The district judge was asked to deal with the matter at a short directions appointment without the benefit of lengthy argument on the law or oral evidence. The father's appeal to a circuit Judge was transferred to this court. I have heard lengthy argument and, with the parties' agreement, oral evidence on the issue of habitual residence up to the date in February of this year when the children were brought to England.
The factual backgroundThe parents were both born in Scotland. They have noticeable Scottish accents. They met and bought a house together there. On 19 September 1986 they were marred there, their two children were born there, in July 1988 and September 1990 respectively. However, in May 1992, the family moved to live in Spain. They sold their house and bought a bar. They worked in this for about six months but then the father moved on to work for a timeshare enterprise. According to them both, this was a questionable operation, already under investigation by the Spanish authorities, and regularly changing its name in an attempt to keep one step ahead of them.
In April 1994 the father was involved in a road accident in Spain and charged with a drink driving offence. On 28 September 1994 his lawyers told him that there was a possibility of a prison sentence. Rather than subject himself, his wife and his children to the...
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