Re M (Minors) (Jurisdiction: Habitual Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Year | 1997 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS, MILLETT AND ALDOUS, L JJ
Jurisdiction – children – habitual residence – family settled in Scotland but with eventual intention of moving to England – whether children habitually resident in Scotland – test to be applied – whether proceedings should be heard in English or Scottish court.
The husband and wife married in 1986 in England. They had two children, born in 1987 and 1990. The parties lived in England from 1986 to 1988 and then in Germany from 1988 to 1991. The family returned to England in 1991, and in 1994, by agreement, they moved to live in Scotland, remaining there until the wife and children left the husband and returned to England on 10 June 1996. Two days later, the wife obtained ex parte residence and prohibited steps orders to prevent the husband removing the children from England. On 14 June 1996 the wife issued her divorce petition. On 9 July 1996, the wife was granted an injunction, preventing the husband from issuing a divorce petition in Scotland. The Judge found that the children had no habitual residence, that their welfare required them to remain in England, and it would not be in their interests for the proceedings in Scotland to continue. The husband appealed.
Held – allowing the appeal: (1) When determining the issue of habitual residence, the Judge was wrong not to take into account the fact that the family was living and settled in Scotland. The test propounded in R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309, as to "ordinarily resident" applied equally to habitual residence. The husband and wife had settled in Scotland voluntarily as part of the regular order of their lives for a period which the Judge saw as of medium duration. The family was settled in council accommodation, the children were at school, the husband had a permanent job and the wife a part-time job. The fact that they might at some future date decide to move to England did not prevent their habitual residence for the period prior to 10 June 1996 being Scotland. The Judge was accordingly plainly wrong to find there was no habitual residence.
(2) As the children were habitually resident in Scotland prior to 10 June 1996, they had been wrongfully removed by their mother in breach of the husband's rights of custody under s 2(1) of the Law Reform (Parent and Child) (Scotland) Act 1986. Accepting that the welfare of the children was paramount, it was necessary also to accept that their welfare would be best served by returning them to be dealt with by the court of the jurisdiction of their habitual residence. This was not a decision that they should go and live in that country, it was only a decision as to jurisdiction.
(3) When the Judge considered the issue of the injunction, he should have considered the effect of the provisions of the Domicile and Matrimonial Proceedings Act 1973. The
effect of the injunction was to frustrate the operation of the 1973 Act and thereby the intention of Parliament as to which would be the most appropriate forum for the proceedings to be heard. It could only be in exceptional circumstances that one of the courts of the United Kingdom should impede this legislative process. It was not a question of weighing up the welfare considerations and deciding that one jurisdiction was preferable to another. The question to be answered was why the case should not be heard in Scotland. If the Judge had not been distracted by his decision that the children were not habitually resident in Scotland, he would have put his mind immediately to s 2A(4) or s 5(2) of the Family Law Act 1986, and would have considered very seriously whether he should stay the English proceedings, pending the issue of the Scottish divorce proceedings. The Judge was wrong to keep the case within England and not to state clearly that the children should have the decision as to their future made in Scotland. The injunction would be discharged and the English proceedings stayed until the Scottish divorce petition was filed. The provisions as to residence and prohibited steps would remain in force until the issue of the divorce petition in Scotland.
Statutory provisions referred to:Children Act 1989, s 8.
Domicile and Matrimonial Proceedings Act 1973, s 5 and Sch 1, paras 3, 8, 9 and 11.
Family Law Act 1986, ss 1, 2, 3 and 5.
Law Reform (Parent and Child) (Scotland) Act 1986, s 2.
Cases referred to in judgment:De Dampierre v De Dampierre [1988] AC 92; [1987] 2 WLR 1006; [1987] 2 All ER 1.
Dixon v Dixon [190] SELR 692 (Scotland).
R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309; [1983] 2 WLR 16; [1983] 1 All ER 226.
Reed v Young [1986] 1 Ch 1.
Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada [1987] AC 460; [1986] 3 WLR 972; [1986] 3 All ER 843.
Additional Cases referred to:C (Minors) (Wardship: Jurisdiction), Re [1978] Fam 105; [1977] 3 WLR 561; [1978] 2 All ER 230.
F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1991] 3 WLR 1272; [1990] 3 All ER 97.
Hallam v Hallam[1992] 2 FCR 197.
Hallam v Hallam (No 2)[1992] 2 FCR 205.
J (A Minor) (Abduction: Custody Rights), Re [1991] FCR 129; [1990] AC 562; [1990] 3 WLR 492; [1990] 2 All ER 961.
KM (A Minor) (Habitual Residence), Re[1996] 2 FCR 333.
P (A Minor) (Abduction), Re[1996] 3 FCR 233.
R (Minors) (Wardship and Jurisdiction), Re (1981) 2 FLR 416.
S (A Minor) (Contact Jurisdiction), Re[1995] 2 FCR 162.
S (A Minor) (Stay of Proceedings), Re[1994] 1 FCR 577.
Mark Everall, QC and Catriona Murfitt for the appellant.
Ian Karsten, QC and Gary Crawley for the respondent.
LADY JUSTICE BUTLER-SLOSS.The dispute between the parties, who are husband and wife and the father and mother of two children, ranges over where the divorce and the children proceedings should be heard, whether it be in England or in Scotland. It arises directly by way of appeal with the leave of the Judge from the order of His Honour Judge Slot of 9 July 1996 in the Guildford county court.
I would like to start by thanking both counsel for their admirable written skeleton arguments and their most helpful oral submissions and would like to say that had time permitted on the last but one day of term for me to have gone in some detail into the decisions which are cited in each of their skeleton arguments I should like to have had the opportunity to do so and it is no disrespect to them that this judgment will not include the learning from both the leading counsel to whom I am, for my part, extremely grateful.
The husband and wife were married on 14 November 1986 in England. The two children are J, born on 28 August 1987, so he is nearly 9. He was born in England. R was born on 1 February 1990 in Germany, so that he is 6. Both the parents, as it happened, were born in England, although the father's family is Scottish and he has much closer connexions with Scotland than with England. The father was in the army and as a consequence of his army service, after marriage, the husband and wife and the children lived in England from 1986 to 1988 and in Germany from 1988 to 1991.
In 1991 the father was posted back to England, to Catterick in Yorkshire, and in 1994 he left the army. As soon as he left the army the father [and mother] went to Scotland as a family and they remained there until the wife and the two children left the husband on 10 June 1996.
The couple went to Scotland with the intention of living there for a while and not entirely to the pleasure of the wife, although she went voluntarily, because being English and with her family in the South of England she clearly hankered after England in preference to Scotland, but there is no question but that their living in Scotland was with the agreement of both of them.
They obtained council accommodation very close to the husband's family. The children were put into school. The husband obtained a full-time permanent job and the wife obtained a part-time job. On 10 June, without the knowledge of the husband, the wife left Scotland and brought the children to England and she is living at the moment with the children in a women's refuge.
On 12 June she made application under the Children Act 1989 for section 8 orders. She obtained an ex parte residence order and an ex parte prohibited steps order to prevent the husband from removing the children from England. On 14 June, that is to say two days after the first Children Act orders, she issued her divorce petition. The husband issued Scottish children proceedings on 24 June. Those were adjourned to 10 July, the day after the hearing before Judge Slot which is the subject of this appeal.
The husband intended to issue a divorce petition in Scotland, but had not done so by the hearing of 9 July, although it was understood by everybody that his lawyers were likely to be filing it that very day. His opportunity to present his divorce petition in Scotland was inhibited by the decision of Judge Slot to grant
an injunction to prevent him from doing so. So the injunction granted on 9 July has had the effect, to our knowledge, that no divorce petition has yet been issued in Scotland. We...
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