P (Plaintiff) v G
| Jurisdiction | England & Wales |
| Judge | MRS. JUSTICE KING |
| Judgment Date | 30 April 2010 |
| Neutral Citation | [2010] EWHC 1311 (Fam) |
| Date | 30 April 2010 |
| Court | Family Division |
| Docket Number | Case Nos. FD10P00641 & FDIOP00518 |
[2010] EWHC 1311 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mrs. Justice Eleanor King
Case Nos. FD10P00641 & FDIOP00518
MS. I RAMSAHOY (instructed by International Family Law Group) appeared on behalf of the Plaintiff.
MR. F. WILKINSON (instructed by Richard Crumly) appeared on behalf of the Defendant.
This is an application made by the plaintiff father, P, by way of an originating summons dated 9th March 2010. He seeks an order that certain Children Act proceedings commenced by the defendant mother, G, should be stayed pursuant to s.5 of the Family Law Act 1986. The basis of his application is that the matters before the court should be heard in Scotland and not England.
The matter came before me this morning for the determination of this jurisdictional issue. I am grateful to counsel representing both parties who have provided full skeleton arguments on this somewhat complicated area of the inter-relation of the jurisdiction as between England and Wales on the one hand and Scotland on the other.
In view of the urgency of this application which has hearings listed in both England and Scotland, I now give an extempore judgment in relation to the application.
Background
The background is as follows: there are two children of the family: C, who was born in 1997 (12 years) and S who was born in 2006 (4 years).
C is the natural child of the mother but not the father. The father has no parental responsibility in respect of C although she lived and was regarded as a 'child of the family' throughout the parties' relationship.
The father has indicated to the court today that whilst he would wish to continue to see C and to maintain his relationship with her, he accepts that given her age, it would not be appropriate to pursue an application for residence or contact against her wishes. It is agreed that at present C would be resistant to any such applications.
In relation to C, it is agreed therefore that there will be no proceedings whether in England or Scotland in relation to her future welfare.
S is the child of the relationship between the mother and the father. Although the parties never married, the father has parental responsibility for S.
The mother and father started seeing each other in about 2004 and began to cohabit in Basingstoke later that year. S was born in January 2006 in England where her birth is registered. In May 2007, the family moved to Scotland to a property which was to be their family home until December 2009.
The relationship between the parents did not prosper. It is alleged by the mother that there were a number of incidents of violence against her by the father; she alleges incidents of violence in October 2008 when the police were involved. More recently, on 18th December 2009, the mother alleges a further instance of serious violence when she says that the father not only attacked her but threatened to remove S from her care. Whatever the rights and wrongs of the incident may be, immediately following it the mother left the family home and moved first to a refuge in Scotland and thereafter the following day to England.
Following the events of 18th December, the police attended at the family property in Scotland where they discovered that the father had an unlicensed shotgun in his possession. That matter is being pursued by the police as are allegations that the father threatened to kill the mother which threats are said to have been communicated by the father to the mother in the form of text messages, emails and voicemails. The police have retained the mother's mobile phone whilst that matter is being investigated.
The mother and the children are now living together at an undisclosed address in the South of England where they have been since about 19th or 20th December 2009.
On 20th January 2010, the father issued proceedings in relation to both children in the Sheriff Court. A hearing took place on 27th January 2010 before Sheriff Drummond. On 3rd February 2010, the mother (despite having notice of those Scottish proceedings), issued her own proceedings in her local County Court. On 10th February 2010 in Scotland a further hearing took place again before Sheriff Drummond. At that hearing service on the mother was deemed to have taken place.
On 18th February 2010 the mother made an ex parte application to the County Court where, given the jurisdictional issues, District Judge Henry transferred the matter to the High Court as a matter of urgency. The matter having been transferred to the High Court in England the mother made a further ex parte application on 22nd February 2010 before His Honour Judge Clifford Bellamy, sitting as a s.9 High Court Judge. Judge Bellamy made various directions which included: a non-molestation order; a residence order in respect of the children; and a prohibited steps order prohibiting the father from removing the children from the jurisdiction of England and Wales and more particularly, from the mother's care.
The orders were not served on the father personally—a requirement given that there was a penal notice on that order—but they were sent to the Scottish Court and to the father's Scottish solicitors and the father knew of the existence of the orders and the terms in which they were made.
On 24th February 2010, there was a further hearing in Scotland before Sheriff Drummond when he granted an application by the mother to stay the Scottish proceedings. On 4th March 2010 the father appealed the granting of the stay to the Sheriff Principal, Sir Stephen Young.
Meanwhile, in England, a few days later on the 8th March 2010, there was a hearing this was listed as the return date of the mother's ex parte application heard on 22 February 2010. The matter came before Recorder Setright QC sitting in the High Court as a s.9 Judge. At the hearing the father confirmed that it was his intention to issue an application to stay the English proceedings. In those circumstances, Mr. Setright made (by consent) extensive directions which not only continued the interim protection in place for the children, but provided for the filing and serving of affidavits. Recorder Setright also ordered that the originating summons applying for the stay which the father intended to issue should be set down for hearing on 16th April.
On 9th March (the day after the hearing before Recorder Setright) the father issued the originating summons.
Meanwhile the Scottish proceeding continued and a couple of weeks later, on 31st March 2010, the Sheriff Principal heard the father's appeal against the order that Sheriff Drummond had made on 24th February staying the Scottish proceedings. The appeal was allowed, the interlocutor of 24th February recalled and the stay lifted. In those circumstances, the father's Scottish proceedings in relation to both children were once again 'live' and the case was remitted to the Sheriff for hearing.
On 7th April 2010 the first inter-parties welfare hearing (whether in Scotland or England) was heard by Sheriff Drummond—in Scotland. Both parties were legally represented. The Sheriff made an interim contact order in respect of S whereby there was to be staying contact with the father each alternative weekend.
On 16th April 2010, the father's originating summons seeking a stay of the English proceedings came on for hearing in the Royal Courts of Justice. Unfortunately the case was unassigned and no court became available. The matter was therefore re-listed for today.
Before the matter was relisted in the Royal Courts of Justice there was a further hearing in Scotland on 28th April 2010 just two days ago. Once again both parties were legally represented. Once again the matter came before Sheriff Drummond. Sheriff Drummond heard the mother's application for leave to appeal against the order for staying contact in respect of S which had been made on 7 April. Sheriff Drummond refused her application and the order for contact remains although the mother has not complied with the terms of the order and no contact has taken place since December 2009.
The present position so far as the Scottish proceedings are concerned is that they are re-listed for 12th May. That hearing is a further welfare hearing in relation to S. S is therefore currently the subject of orders in two jurisdictions: in the English Courts there is a residence order, a prohibited steps order and non-molestation orders. In the Scottish Courts there is a contact order.
The Law
The law governing the inter-relation of the Scottish jurisdiction and the jurisdiction of...
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