R A B V. M I B
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Eassie,Lord Mackay of Drumadoon |
| Judgment Date | 09 September 2008 |
| Neutral Citation | [2008] CSIH 52 |
| Court | Court of Session |
| Published date | 12 September 2008 |
| Docket Number | XA28/07 |
| Date | 09 September 2008 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lady Paton Lord Mackay of Drumadoon | [2008] CSIH 52 XA28/07 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL From the Sheriffdom of Grampian, Highlands and Islands at Aberdeen in the cause RAB Pursuer and Appellant; against MIB Defender and Respondent _______ |
Act: Party (Pursuer and Appellant)
Alt: Loudon; Anderson Strathern LLP; (Defender and Respondent)
9 September 2008
Introductory
[1] This is a defended action of divorce which was commenced in the Sheriff Court in Aberdeen in February 2003. The parties were married in Abu Dhabi on 11 November 1996. There is one child of the marriage, who was born on 5 August 1997. The ground upon which divorce is sought is the defender's desertion of the pursuer. Desertion is denied by the defender. In the written pleadings in the action, as adjusted, the pursuer also seeks a residence order that the child of the marriage should live with him, which failing he seeks an order for contact, including residential contact.
[2] The pursuer, who is Scottish, and the defender, who originates from Somalia, came to the United Kingdom from Abu Dhabi in July 1997 and took up residence in Aberdeen in a house purchased jointly by them. On 18 September 2000 the defender abruptly left Aberdeen with the child and took up residence in London. It is not in dispute that she removed the child to London without the consent of the pursuer. Indeed, it appears that the pursuer had no forewarning of her intention to remove the child and for some time thereafter he remained unaware of the place to which his daughter had been taken. (It appears that he continues not to have been told of the address in or around London at which the defender and his daughter live). Since 18 September 2000 the pursuer has continued to live in Aberdeen. The ground of jurisdiction upon which this action of divorce is based is the pursuer's habitual residence in Aberdeen. This ground of jurisdiction is not disputed. It is also not disputed that on 18 September 2000 both parties and the child had their habitual residence in Aberdeen.
[3] Having removed herself and the child to London, the defender applied to Willesden County Court for a residence order that the child live with her and a "prohibited steps" order prohibiting the pursuer from removing the child from the care and control of the defender or the jurisdiction of the English courts. On 29 November 2000 the District Judge (Morris) granted that application without the pursuer having been given any notice of the proceedings; but the order was qualified as being "with liberty to apply for variation" on giving notice to the defender's English solicitors.
[4] It is not disputed by counsel for the defender - nor the superior English Courts before whom the question has been considered following the pursuer's challenge to the jurisdiction of the English courts - that, on any view, when District Judge Morris made that ex parte order on 29 November 2000 he did not have any jurisdiction to do so. The reason for this unquestionable want of jurisdiction is to be found in the provisions of section 41 of the Family Law Act 1986 which provides:-
"41-(1) Where a child who -
(a) has not attained the age of 16, 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 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 or retained outside, or himself leaves or remains outside, 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, or
(b)..."
In view of those provisions it is accepted that for jurisdictional purposes the child could not acquire a habitual residence in England at the least before the expiry of that one year period.
[5] The order of the District Judge was subsequently notified to the pursuer in Aberdeen. He consulted solicitors in Aberdeen who advised him that since an English court was involved he should instruct English solicitors. The pursuer did so. The pursuer, who appeared on his own behalf before us, advanced criticisms of the way in which those English solicitors had proceeded but for present purposes we do not think it necessary to enter into the details in any depth. In due course the pursuer dispensed with their services, on the basis that they had not properly advanced his principal (and correct) contention that the District Judge had no jurisdiction to make the order which he made.
[6] The pursuer thereafter sought to challenge in the English courts the validity of the county court order made by District Judge Morris on the basis that he lacked jurisdiction and that, consequently, that order lacked validity even after the expiry of the one year period specified in section 41 of the 1986 Act. Those efforts were eventually pursued to the Court of Appeal in England which decided the issue adversely to the pursuer. The decision of the Court of Appeal is reported at [2004] 2 FLR 741 to which reference may be made, particularly for the history of the English proceedings. Despite the length and complexity of those proceedings, it may be noted that there has never been any hearing in England in which evidence respecting the substantive issues concerning the welfare of the child has been heard. Certain reports were provided by CAFCASS (as described in paragraphs 25-30 of the judgement of Wall LJ in the Court of Appeal) but in the event, as stated in paragraph 30 of that judgment - "so stark were the issues of fact between R's [the child'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". No such hearing as recommended took place and it is accepted by both parties that the English proceedings are no longer in continuance (at least in any active sense).
[7] Adverting now to the history of the procedure in the present divorce action, with its important ancillary craves for residence, which failing contact, the salient features or events for present purposes are these. At an options hearing on 9 July 2003 the sheriff was advised that a hearing had been fixed for 22 August 2003 in the High Court in England (to which the Willesden County Court proceedings had been transferred) at which "a final determination of the English action is expected". In the light of that information the sheriff (Harris) sisted the action to await that determination. In the event the hearing envisaged for 22 August 2003 in England did not take place. But the sist remained in place and on 3 September 2004 the sheriff (Cowan) refused a motion by the pursuer to recall the sist. The pursuer appealed that decision unsuccessfully to both the sheriff principal and the Court of Session, the appeals being refused on 18 January 2005 and 12 August 2005 respectively. However, not long after the exhaustion of those appellate procedures the defender then enrolled a motion to recall the sist, which the pursuer, understandably, did not oppose. The precise course of procedure following that recall of the sist is, regrettably, not entirely clear from the interlocutors, but it appears that the defender lodged a Minute of Amendment No. 23 of process which, put shortly, made various brief references to the English proceedings but, importantly, included deletion of all pleas in law for the defender other than the fourth and the insertion of the following as a first plea in law on behalf of the defender:-
"1. This court being forum non conveniens in relation to orders under section 11 of the Children (Scotland) Act 1995, in respect of the child the Pursuer's second and third craves should be dismissed"
Those second and third craves relate to the pursuer's wish to have his daughter reside with him, which failing to have contact, including residential contact with her. So, in essence, the defender's contention as advanced in her plea was that any question of the proper decision on the welfare of the child should be left to the English court and that the Scottish court - albeit that it was the court of dissolution of the marriage - should decline jurisdiction. The sheriff (Cowan) heard debate upon this matter and upheld the plea of forum non conveniens. The sheriff principal refused the appeal by the pursuer to him. It is against that decision that the current appeal is taken by the pursuer and appellant.
The Sheriff's Decision
[8] After a brief outline of the history of matters, including reference to the judgment of Wall LJ, and a very short summary of the submissions (which, so far as the pursuer is concerned had included the narration that he was unable to obtain public funding in England), the material part of the sheriff's note containing her reasons for upholding the plea and declining jurisdiction is in these terms: -
"In reaching a decision on whether this Court is the appropriate forum to decide on residence and contact, I have to consider not only the convenience of the parties but also of potential witnesses. I also have to bear in mind that there is a court already competently seized (sic) of the questions. It is relevant that the law of England in respect of residence and contact is not, so far as I am aware, so different in its practical...
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