Family Action G O T V K J K
| Jurisdiction | Scotland |
| Judge | Sheriff George Jamieson |
| Court | Sheriff Court |
| Date | 12 December 2012 |
| Published date | 05 August 2014 |
2014SCDUM27
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES
COURT Ref. No.: F 37/05
NOTE
by
SHERIFF GEORGE JAMIESON
in the family action F37/05
G. O. T. PURSUER
against
K. J. K. DEFENDER
____________________________________________
Dumfries 12 December 2012
The sheriff, having made avizandum on the question of jurisdiction anent the pursuer’s application for a residence order in respect of the children, and now having resumed consideration of the cause Finds , subject to section 41(3) of the Family Law Act 1986 not applying in this case, that in terms of sections 9 (b) and 41(2)(a) of the Family Law (Scotland) Act 1986 the children were habitually resident within the sheriffdom on the date of the pursuer’s application for a residence order in respect of them, Finds therefore, subject to section 41(3) of the Family Law Act 1986 not applying in this case , that this court may entertain the pursuer’s application for a residence order in respect of the children by virtue of section 8 of the Family Law Act 1986, Continues consideration of the cause until Thursday 27 December 2012 at 10:00am to hear further submissions on whether section 41(3) of the Family Law Act 1986 applies in this case, Reserves meantime consideration of the defender’s preliminary plea number three that the action (sic) should be dismissed and her preliminary pleas seven and eight regarding England and Wales being the more convenient or appropriate jurisdiction to consider the making of a Part I order in respect of the children under the Family Law Act 1986.
Sheriff George Jamieson
NOTE
Background
- [1]The pursuer is the registered birth father and the defender the mother of the children. The parties were not married to each other at any time. Consequently, as both children were born before section 23 of the Family Law (Scotland) Act 2006 was brought into force on 4 May 2006, the pursuer initially had no parental responsibilities and rights conferred upon him in respect of the children under sections 1 and 2 of the Children (Scotland) Act 1995: Family Law (Scotland) Act 2006, section 23(4)
- [2]But on 22 September 2005, Sheriff Barr made an order in this process “under and in terms of section 11(2)(b) of the Children (Scotland) Act 1995 conferring parental responsibilities and rights on the pursuer in respect of the children”. This order has never been varied or recalled and it remains in force to this date. Thus as a holder of parental responsibilities and rights in respect of the children, the pursuer has the right to “have the [children] live with him or otherwise to regulate the [children’s] residence” until the children attain the age of sixteen years: Children (Scotland) Act 1995, sections 2(1) (a), 2(7) and 3(3)
- [3]The parties are former cohabitants. They stopped living together in 2004. In 2005 the pursuer made application to this court for a contact order in respect of the children under section 11 of the Children (Scotland) Act 1995. The action has had a long and protracted history. Various contact orders have been made along the way in favour of the pursuer
- [4]The pursuer alleges that of late the defender has not obtempered these orders. He has made a separate application in a separate process to this court for a finding the defender is in contempt of court. The defender failed to appear at a proof diet in those proceedings and a warrant was issued for her arrest. On 6 December 2012 she voluntarily appeared to answer the warrant. Those proceedings will in due course resume
- [5]The pursuer has become frustrated that the defender has not been allowing him contact with the children. He has therefore made application to this court for a residence order in respect of the children under section 11 of the Children (Scotland) Act 1995[1]. The defender contends that, as she has moved with the children to reside in England and Wales, this court does not exercise jurisdiction in respect of that application.
- [6]Given the issue of this court’s jurisdiction concerning the application for a residence order in respect of the children is contested in this case, the court assigned a diet of debate at which it could consider this issue and make any necessary directions as to procedure. The case called before me for debate on 6 December 2012. After hearing debate, I “made avizandum”, which is the technical term in Scots law for reserving judgment on the issue before it. Upon resuming consideration of the case, I have pronounced a further interlocutor finding that this court might exercise jurisdiction under Scots law in respect of the pursuer’s application for a residence order. The purpose of this Note is to explain my reasons for that finding.
- [7]The defender’s agent suggested it was for the High Court in England and Wales to determine the issue of jurisdiction. I will deal with that important issue later in this Note. His submission failed to address the constitutional point that the High Court of England and Wales does not exercise jurisdiction in Scotland. It is for the Scottish courts to determine if they exercise jurisdiction in any particular action. The issue having been raised, and contested, it was my duty to determine it.
- [8]It would have been open to me of my “own accord” to remit the action to the Outer House of the Court of Session for determination of the jurisdictional issue in terms of section 37(2A) of the Sheriff Courts (Scotland) Act 1971. This is the similar course adopted by the district judge who I understand has transferred the English county court proceedings to the High Court.
- [9]But there are a number of important differences. The Outer House of the Court of Session (equivalent of course to the High Court of England and Wales) does not sit on circuit. It sits only in Edinburgh. Parties would require to instruct counsel or a solicitor advocate to appear before that Court. Solicitors routinely appear in the sheriff courts of Scotland in a range of complex cases. To have remitted this action to the Court of Session at this stage would therefore have burdened the parties with the delay, considerable expense and the inconvenience of travelling to Edinburgh for a hearing, whereas the issue could be resolved locally by this court without the further delay or additional expense[2].
SUBMISSIONS
- [10]The defender’s agent submitted in essence that the pursuer had “agreed” to the children leaving Scotland for England. Their habitual residence had not therefore been extended by the twelve month period referred to in section 41 of the Family Law Act 1986. He referred to a number of adminicles of evidence from which he said that that agreement could be inferred. He maintained that even if this were “acquiescence” rather than express agreement, then “acquiescence” would suffice for the purpose of section 41.
Mr B’s Report
- [11]The defender’s agent referred me to Mr B’s Report at 5/8 of process[3]. At pages 4 and 5 of this report, Mr B notes the pursuer as indicating it became obvious to the pursuer following the defender’s move that “the contact arrangements would require to alter. He wished to ensure that his relationship with his daughters continued. He did not seek to prevent Miss K moving. He did however wish to secure residential contact during holiday periods”.
The proceedings before the children’s hearing
- [12]The defender’s agent noted the pursuer had not sought to interdict the children’s removal from Scotland, or appeal the terms of the supervision requirement that the children reside with the defender in England. He suggested the pursuer had given his consent to the social workers that the children relocate, but did not point to any document supporting this assertion.
Email of 25 August 2011
- [13]The defender’s agent referred me to an email from the pursuer’s former solicitor, to the defender’s former solicitor, stating that the pursuer “did not wish to become embroiled in further court proceedings regarding the issue of contact, particularly as he may well have to instruct agents to raise proceedings in England”.
Letter dated 14 June 2011, Dr S’s letter dated 29th February 2012 and the Report on Investigation of Complaint dated 27 July 2011
- [14]The defender’s “Note of Argument” number 21 of processsuggests these three documents, numbers 5/6, 5/12 and 5/14 of process respectively “all show that the pursuer was well aware of the defender’s proposed move prior to her actually making the move [27 June 2011]”.
- [15]The letter dated 14 June 2011 informed the pursuer the defender intended to move “once the social work involvement is at an end”. It invited the pursuer’s proposals anent contact with the children.
- [16]Dr S’s letter explained why the defender could not attend court in Scotland on that occasion.
- [17]The Report on the investigation into the pursuer’s complaint against the Social Work Department discloses the pursuer was aware of the defender’s plans to move on 28 June 2011(sic).
Defender’s legal submissions
- [18]The defender’s agent argued in his oral submissions that the purpose of section 41 of the 1986 Act as disclosed in the annotation thereto in Current Law Statutes was to prevent the “unauthorised” removal of the children from Scotland. Since their removal had been “authorised” by the children’s hearing, he argued section 41 did not apply.
- [19]He argued in his Note of Argument that firstly section 41 did not apply as the children had been residing out of Scotland for more than a year now- one year and five months. They were habitually resident in England and Wales and the court in Scotland no longer had jurisdiction to entertain the pursuer’s application for a residence order.
- [20]He argued in his Note of Argument that secondly section 41 did not apply as in his submission the one year rule only applied if the children were removed in contravention of a court...
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