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||Neutral Citation Number:  EWCA Civ 681
||Case No: B1/2003/1957
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
Mr Justice Sumner
||Royal Courts of Justice
London, WC2A 2LL
||28th May 2004
B e f o r e :
LADY JUSTICE ARDEN DBE
LORD JUSTICE WALL
||- and -
(Transcript of the Handed Down Judgment of
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Nick O'Brien Esq (instructed by Kaim Todner) for the Appellant
Peter Wright Esq (instructed by Hameed & Co) for the Respondent
HTML VERSION OF JUDGMENT
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Lord Justice Wall:
- Two questions arise for our decision in this appeal. They are: -
(1) do the courts of England and Wales have jurisdiction to hear proceedings under the Children Act 1989 between the appellant Mr B and his wife Mrs B in relation to their daughter R, who was born on 5 August 1997?
(2) If the answer to (1) is "yes": should the English court nonetheless decline to exercise its jurisdiction in order for the issues between Mr and Mrs B relating to R to be heard by the Sheriff in matrimonial proceedings instituted by Mr. B in the Sheriffdom of Grampian Highland and Islands at Aberdeen in Scotland?
- With limited permission granted by Ward LJ on 30 October 2003, Mr B appeals against an order made by Sumner J sitting in the Family Division of the High Court in London on 29 August 2003 dismissing Mr. B's application to "transfer proceedings concerning R". The judge's order, which reflects the wording of Mr. B's application, is somewhat inelegantly expressed, since the judge plainly did not have the power to transfer English proceedings to Scotland. His intention is, however, perfectly clear. He was refusing either to dismiss or to stay extant and ongoing English proceedings under the Children Act 1989. Most helpfully, he provided a careful and extremely clear reserved judgment, a copy of which he directed should be sent to the Sheriff's court in Aberdeen. He further stayed the English proceedings pending Mr B's application for permission to appeal on terms that Mr B did not start or continue any proceedings in Scotland concerning R pending the determination of the application and any consequent appeal. He refused permission to appeal. However, Ward LJ on an oral application made by Mr B in person granted permission, but limited it to the jurisdictional aspects of the case.
- As it now transpires, the jurisdictional issue is, in my judgment, both narrow and virtually unarguable. However, what should have been a very simple issue has become quite extraordinarily complicated, and in order to untangle it, it is necessary to set out the history in some detail. In doing so, I propose to intersperse at appropriate places the relevant provisions of the principal Statute governing the case, the Family Law Act 1986 (FLA 1986) so that the reader can see precisely how and why the difficulties have arisen.
- Mr B is a Scot living in Aberdeen. He is habitually resident in Scotland. Mrs B is by origin Somalian. She has indefinite leave to remain in the United Kingdom, and is habitually resident in England and Wales.
- Mr and Mr B married in November 1996 in Abu Dhabi. In 1997 they returned to the United Kingdom, and set up home in Scotland. R is their only child and is rising seven at the date of this judgment. She lives with her mother. Unfortunately, R suffers from Down Syndrome, and has special needs.
- Mr and Mrs B separated in September 2000. Mrs B left the matrimonial home in Inverness and came to England with R. She did not tell Mr. B that she was leaving, nor did she reveal to him where she had gone.
- On 21 November 2000 Mrs B issued an application in the Willesden County Court under the Children Act 1989 seeking (1) a residence order relating to R and (2) a prohibited steps order against Mr B prohibiting him from removing R from the jurisdiction. She made a number of allegations about Mr B's conduct towards her, which have never, as we understand it, been adjudicated upon by any court.
- On 29 November 2000, District Judge Morris, sitting in the Willesden County Court made the orders Mrs B sought. He made a residence order in relation to R: he prohibited Mr B from removing R from Mrs B's care and control and from the jurisdiction of the court. Because the order had been made without notice to Mr B, it provided that there be liberty for Mr B to apply to vary the order upon giving forty-eight hours written notice to Mrs B's solicitors.
- On 8 December 2000 the order of the Willesden County Court made on 29 November 2000 was served on Mr B in Scotland. He did not, however, make any application to vary or discharge either the residence order or the prohibited steps order, nor did he at that point institute proceedings of any kind in Scotland
- It is the order of 29 November 2000, which provides the cornerstone of Mr B's jurisdiction argument. He submits that the Willesden County Court had no jurisdiction to make that order. His submission is based on section 41 of FLA 1986. This (where material) reads: -
"41. Habitual residence after removal without consent, etc-
(1) Where a child who –
(a) has not attained the age of sixteen, 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 the 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 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…."
- It is clear that immediately prior to her removal from Scotland in September 2000, R was habitually resident in Scotland. It is also clear that Mrs B did not obtain her husband's agreement for R's removal to England. It is thus equally clear that, in the circumstances, R was to be treated as habitually resident in Scotland for a period of twelve months from September 2000.
- The significance of section 41 is that under the provision of Part 1 of FLA 1986, a County Court in England and Wales only has jurisdiction to make orders under Section 8 of the Children Act 1989 in relation to children who are either habitually resident in England and Wales or present in England and Wales and not habitually resident in any part of the United Kingdom. This is the combined effect of the somewhat opaque provisions of Sections 1, 2 and 3 of FLA 1986.
- The provisions to which I have referred relate to proceedings under the Children Act 1989 in a non-matrimonial case. As we shall see, different provisions apply where there are pending divorce proceedings. However, at the time Mrs B applied to the Willesden County Court on 21 November 2000 there were no divorce proceedings between herself and her husband pending in either Scotland or England.
- It is thus common ground that the Willesden County Court did not have jurisdiction to make a residence order in Mrs B's favour on 29 November 2000. I will return later in this judgment to the status of the order and the question as to whether or not the county court had jurisdiction to make a prohibited steps order. However, what is plain is that had Mr B applied to the Willesden County Court at any time before September 2001, that court would have been bound to have discharged the residence order made on 29 November 2000: equally, had Mr B instituted proceedings in the Sheriff Court in Inverness prior to September 2001, that court would have undoubtedly had jurisdiction over R in any such proceedings.
- The curious feature of this case (and one which it is not for us to investigate) is that within the vital one year period Mr B did not apply to the Willesden County Court to vary or discharge the order of 29 November 2000; nor did he institute proceedings of any kind in Scotland.
- The result is that the twelve months for deemed habitual residence in Scotland provided by Section 41 of FLA 1986 came to an end in September 2001. Quite when, in the unusual circumstances of this case, R became habitually resident in England is a nice question, which, fortunately, it is not necessary for us to determine. What is, on any view, as plain as a pikestaff is that by the end of September 2001 R was, without any doubt whatsoever, habitually resident in England in her mother's care.
- The first procedural step which Mr B appears to have taken was to issue an application in the Willesden County Court dated 1 November 2001 in which he states in terms that he is seeking a residence order and a contact order. He also says that he is seeking a direction for R's address to be disclosed to the court by the Child Benefit Agency.
- In Section 12 of the form which provides for the applicant to state his reasons for applying, and any plans for the child, Mr B states: -
"Since the mother left Scotland with the child I have not had any contact and have been unable to contact the mother as I do not know her whereabouts. I therefore seek a contact order in respect of R.
I also seek a residence order, as I am concerned about the care given to my daughter by the mother.
I understand that the court has the last known address for the mother and I therefore ask that they serve the application and notice on her directly. If the mother is no longer resident at that address I seek a direction that the Child Benefit Agency disclose the whereabouts of the child to the court."
- This application, which is in typescript, bears Mr B's signature. His explanation for it is extraordinary. He says that the blank form was sent to him by his English solicitors. He was told to sign it (blank) and return it. He did so, and his solicitors then filled it in. He says that in applying to the court as they did, for residence and contact, they were acting wholly contrary to his instructions.
- The Willesden County Court acted on the application. On 16 January 2002, after hearing counsel for Mr B and in the absence of Mrs B (she not having been served) the court dismissed the application for the Benefits Agency to disclose R's address. It gave permission to issue the application for a residence order and contact order forthwith; it directed that the application be served on the mother via her solicitors; and listed it for directions on 22 February 2002.
- On 22 February 2002 both Mr and Mrs B were represented by counsel and the District Judge adjourned the application to 18 March 2002. He reserved it to himself.
- On 26 February 2002 Mrs B issued an application for a non-molestation order and other protective orders under the Family Law Act 1996. She swore an affidavit in support setting out her case. That application came before His Honour Judge Sich on 6 March 2002. Mrs B was represented by counsel. Mr B was in person. The judge made non-molestation orders to continue until 6 July 2002; he attached a power of arrest to the relevant parts to the same date; he gave Mr B liberty to apply to vary or discharge the orders on forty-eight hours notice to Mrs B's solicitors and gave Mr B liberty to file and serve statements in answer to the application not later than 15 March 2002.
- On 18 March 2002, Mr B swore an affidavit in Family Law Act proceedings. A flavour of Mr B's position can be gathered from paragraph two of his affidavit: -
"2 By the way of background the applicant on the 19 September 2000 made a unilateral decision to terminate her habitual residence and place of ordinary matrimonial residence in a conspiracy involving the Grampian Police, Aberdeen Social Work Department, Scottish Down Syndrome Association and others who aided and abetted her in the forceful unlewful [sic] removal of the child R from the safety and care of her Aberdeen home without my knowledge or consent prior notification to me which effectively denied me my Human Rights under the Human Rights Charter and the Human Rights Act 1998.
To date in another conspiracy involiving [sic] the solicitors of both parties have ensured that the vital releveny [sic] documents and information such court orders notice of impendige [sic] applications and notice of proceedings and acknowledgement of service have either not been served upon me prior to the event; have been deliberatly [sic] withheld or misdirected or I have been made aware of their existence their for I am not able to truthfully state what proceedings are in which state of process or progress of being resolved for or against me in England and Wales. "
- In paragraphs 20 and 21 of the same affidavit Mr B stated: -
"20 This entire series of sworn statements are a tissue of fabrication concocted by these individuals to support their fictitious FLA Part (?) domestic violence application and has no basis in truth.
21 I hereby ask, as should have been done by my legal representatives from the onset that this, their application be dismissed and the order by District Judge Morris of the 29 November be set aside or discharged."
- On 18 March 2002 the District Judge gave directions in the Children Act proceedings. Mr B was present in person, and Mrs B was represented by her solicitor. The order made by the District Judge is significant in jurisdictional terms, since he time-tabled Mr B's applications for residence and contact to a final hearing, and gave directions for a report from a CAFCASS officer. The full order made by the District Judge was in the following terms: -
"1. No person or agency shall reveal to the father or anyone on his behalf R's school or whereabouts pending the outcome of the application without prior authority of the court.
2. Children and Family Reporter do file and serve a report as to residence and contact in respect of R d.o.b 05 August 1997 by 17 June 2002.
3. Applicant father do file and serve statement by 8 July 2002.
4. Respondent mother do file and serve a statement in reply by 22 July 2002.
5. List for hearing before a Family Circuit Judge on the first open date after 29 July 2002 with a time estimate of 1 day that is Wednesday 31 July 2002 @ 10:30am.
6. Children and Family Reporter do attend the hearing unless notified by both parties not less than 7 days prior to the hearing that attendance is not needed.
7. Costs in the application."
- The CAFCASS officer attempted to arrange an interview with Mr B for 18 June 2002. Mr B asked for financial assistance in order to attend an interview, alternatively that he should be interviewed in Scotland. Mr B was offered the equivalent of a return coach fare from Aberdeen, but by the time the CAFCASS officer reported on 9 July 2002, no interview had taken place and the CAFCASS officer was "most uncertain" as to whether or not Mr B wished to pursue his applications in the County Court. The impression gained by the CAFCASS officer was that Mr B was intent on endeavouring to move the matter to a Scottish court That was, I think, an accurate impression, and is consistent with paragraph 21 of Mr. B's affidavit sworn on 18 March 2002 (set out at paragraph 24 above).
- However, the clear outcome of the CAFCASS officer's enquires was his opinion that there was "substantial evidence that R (was) thriving in her present situation". As a consequence, for there to be a change to the current orders, Mr B would have to provide the court with credible independent evidence that a change would be in R's best interest. On the evidence available to him, the CAFCASS officer recommended no change in the residence order. If Mr B was to decide that he wished to continue to apply for a contact order, the CAFCASS officer recommended that the matter be adjourned for a further three months so that he could interview Mr B in London. The CAFCASS officer emphasised the location because if contact was to develop, he envisaged one option was that there would be a period of time when it might be supervised at a specialist contact centre in Central London. Mr B's agreement to engage in such a process with its commitment in terms of time and finance would, he said, be necessary.
- In the light of the CAFCASS officer's report, the District Judge on 19 July 2002 vacated the hearing fixed for 31 July 2002, directed the parties to file further evidence and the CAFCASS officer to file and serve an addendum to his report by 31 October 2002. The District Judge listed the matter for 12 November 2002 before a Family Circuit Judge, and directed that the CAFCASS officer attend the hearing. He also directed Mr B to hand over R's passport to her mother.
- On 16 November 2002, Mr B swore a statement in the English proceedings. This sets out the history of the matter from his perspective. I do not propose to set out the terms of this document. It is sufficient to record that Mr B asserts that all the orders hitherto obtained in the English proceedings were obtained by "fraudulent means"; and that he accuses all the lawyers in the case as well as the social workers the police and the court of failing his daughter. He says: "All authority's have failed abysmally by conspired at the material times to let them down" [sic]. He also says that Mrs. B's untruths deprived him of Legal Aid funding.
- The CAFCASS officer reported again on 12 November 2002. By this time he had visited Mr B in Aberdeen, and had read a number of documents, which Mr B provided for him. So stark were the issues of fact between R'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.
- On 12 November 2002 Mr B's application came before His Honour Judge Copley. Mr B appeared in person with a Mackenzie friend: Mrs B was represented by counsel. The judge made an order for contact between R and her father at a contact centre and / or at the offices of the CAFCASS officer. There was a variety of additional directions, including one that Mr B file and serve his statement as to residence and contact by not later than 3 December 2002. Additional directions made by the judge timetabled the case for final hearing on 17 February 2003 with a time estimate of one day. The CAFCASS officer (who was to provide an addendum report dealing with residence and contact) was to attend the final hearing unless notified that his attendance was not required.
- Mr B's response was to issue an Originating Summons in the High Court under the Child Abduction and Custody Act 1985 claiming that R had been wrongfully removed from Aberdeen and seeking her return to Scotland. In the Willesden County Court he sought the transfer of the proceedings to the High Court on the grounds that he had not been giving a fair hearing in the County Court and that the "court files had been missing for two years".
- The proceedings under the Child Abduction and Custody Act came before Johnson J in the High Court on 5 December 2002. We have the advantage of a transcript of the judgment given by the judge dismissing Mr B's application.
- In a characteristically succinct and clearly reasoned judgment, Johnson J recorded the orders made by His Honour Judge Copley on 12 November 2002, and commented that: -
"The Originating Summons, therefore, can be said to be superfluous in the sense that the question whether R shall continue to live with her mother in England or shall move to leave with her father in Scotland, is one that is to be determined in the existing proceedings."
- The judge then went on to consider Mr B's case that R was to be regarded as a Scottish child and that her future should be resolved by the courts of Scotland. He set out the terms of Section 41 of FLA 1986 and continued: -
"Parliament's objective in passing this Act is, I think, obvious. However, this provision applied only for the first year following the change of residence. I do not want to speculate about the reason for that provision. The practical effect for R, however, was that from the date of her removal in September 2000 for a year she was still to be regarded as habitually resident in Scotland. But, in my view, since the expiration of that period of one year, her habitual residence has come to be in England.
However, the important question is whether R shall live with her mother in England or with her father in Scotland. In whichever country the decision falls to be made, the court will strive to achieve what is best for R. Be it in Scotland or be it in England, the objective will be what is best for her. Her interests will be paramount.
Now the fact is the proceedings in England have been in progress for some time - Mr B says for too long. Be that as it may, and I do not want to pass any comment about the progress that the proceedings have made or the manner in which they have been conducted, the fact is that provision has now been made for a hearing to decide this important question: shall R live with her father in Scotland, or her mother in England?
It does not seem to me that there is any advantage to R or to her father in adding these new proceedings to the existing proceedings, that there is nothing that the court could do under this new Originating Summons that it cannot do under the proceedings initiated under the Children Act. For that reason it seems to me undesirable that there should be two sets of proceedings and I therefore dismiss the father's Originating Summons. In doing so, I emphasise to him that he must do everything that is required of him to achieve this hearing next year.
Whether R is to remain with her mother or to move to her father in Aberdeen, the sooner the decision can be made the better. Continuing delay is upsetting for all those around R, and that must have repercussions for her. A decision is necessary."
- I respectfully and entirely agree with Johnson J's analysis. It is wholly apparent that, although he makes a reference to "in whichever country the decision falls to be made" the judge envisaged what he described as "the important question" being determined in England. He tells Mr. B that he must "do everything that is required of him to achieve" the hearing fixed for 17 February 2003. Indeed, at that point, there were no alternative proceedings on foot.
- However, on 17 December 2002, when the matter was listed for further directions in the Willesden County Court Mr B appeared in person, and Mrs B was represented by a solicitor. Judge Copley gave permission to Mr B to withdraw his application for residence, but directed him to file and serve a statement as to contact by not later than 3 January 2003. The proceedings were transferred to the Principal Registry of the Family Division in London: the CAFCASS reporter was to file an addendum report: and various other directions were given including a direction that Mr B lodge R's passport with the Principal Registry.
- In pursuance of Judge Copley's directions, the CAFCASS officer filed a report on 10 February 2003, expressing uncertainty about Mr B's position. Mr B had not lodged R's passport with the Principal Registry and as a consequence no arrangements had been made to facilitate contact. The CAFCASS officer's inquiries indicated that R was progressing satisfactorily, and he reported that on 16 January 2003 Mrs B had been given indefinite leave to remain in the United Kingdom. However, until Mr B clarified his intentions, CAFCASS was not in a position to progress the matter.
- Mr B's next step was to institute divorce proceedings in Scotland. He was, of course entitled to do so, and the Scottish court undoubtedly had jurisdiction to entertain them. On 27 January 2003, in accordance with Scottish procedure, the initial writ in the divorce proceedings was put before the Sheriff. The Sheriff refused to grant a warrant to cite Mrs B on the basis that the Scottish court did not have jurisdiction in relation to R.
- Mr B appealed that decision to the Sheriff Principal, Sir Stephen Young QC, who allowed the appeal on 24 February 2003 and granted a warrant to cite Mrs B. He did so on the grounds that the Sheriff ought not to have refused to grant the warrant to cite Mrs B on the ground of no jurisdiction unless there was a patent defect of jurisdiction. The Sheriff Principal was further of the opinion that it was at least arguable that the Scottish court did have jurisdiction to make orders in relation to the child in terms of Section 10(1) of Domicile and Matrimonial Proceedings Act 1973, Section 13 of FLA 1986 and Section 12(1) of the Children Act (Scotland) 1995. In a subsequent judgment, given on 20 January 2004, the Sheriff Principal said of this decision: -
But of course it is one thing to say that this court may have jurisdiction to make orders in relation to the child (which was all that was required to entitle the pursuer to get the action underway) and quite another to say that it does have jurisdiction or, even if it does, that it should exercise that jurisdiction (in particular when the child has been residing for a considerable time in England).
I drew attention to these matters in the final paragraph of my note where I stated: -
In so doing (that is, in granting the warrant to cite the defender) I emphasised to the pursuer that the question of jurisdiction was still an open one to be determined, if need be, at a later stage in the proceedings. I also pointed out that the Sheriff might have to consider the possibility of a sist (the equivalent to a stay of proceedings in English law) in light, for example, of Section 11 and Schedule 3 of the 1973 Act and Section 14 of the 1986 Act. I drew attention too to the difficulties that the pursuer might face so long as he remained in ignorance of the defender's whereabouts.
- The Sheriff Principal's order was, accordingly, that Mrs B was to lodge a notice of intention to defend with the Sheriff clerk at Castle Street Aberdeen if she wished to challenge the jurisdiction of the Scottish court / oppose any claim/ make any claim.
- Meanwhile, in England, Mr B applied for permission to appeal the order made by Johnson J. The application was refused on paper by Thorpe LJ on 20 March 2003, and 7 April 2003 Mr B's renewed application was refused by Thorpe LJ in court. Thorpe LJ adhered to his view expressed on paper that Mr B's issue of an Originating Summons under the Child Abduction and Custody Act had been misconceived and that Johnson J had been fully justified in dismissing it. Thorpe LJ articulated the undesirability of any jurisdictional conflict between the Sheriff's court in Scotland and the County Court in England and Wales and made it clear that if the case gave rise to any difficulties or conflict between the two jurisdictions it would be open to the judges of the respective courts to communicate directly in order to reach an agreement as to the jurisdictional boundaries between them.
- On 8 April 2003, Mr B issued the application, which came before Sumner J on 22 August 2003. We do not have details of the relief sought in our papers, but the judge records it as an application "to discharge all previous orders made in proceedings in England concerning (R) and to transfer further hearings to Scotland".
- On 11 April 2003 Deputy District Judge Todd in the Principal Registry transferred that application to the High Court together with Mr B's application for a contact order, and 5 June 2003 Holman J gave careful directions for the hearing before Sumner J on 22 August 2003, the terms of which it is unnecessary to set out.
- In the meantime, in the Scottish divorce proceedings, Sheriff Harris on 2 May 2003 granted a motion, opposed by Mr B, to allow Mrs B further time for her " notice of intention to defend" to be received, although it was late. On the same day, the Sheriff fixed 30 May 2003 as a child welfare hearing and assigned 27 June 2003 as the date for what is known in the Scottish procedure as the "options hearing".
- On 30 May 2003 Sheriff Buchanan continued the child welfare hearing to the date fixed for the options hearing namely 27 June 2003 and directed that Mrs B appear personally on that date. Mrs B was not present on 30 May 2003, but was represented by a solicitor. Sheriff Buchanan wrote a note explaining his decision in the following terms: -
"I continue the child welfare hearing to the options hearing on 27 June for four main reasons: -
(1) To allow (Mrs B) to be present. She was unable to afford to travel from London to Aberdeen for the hearing today but I stated that she would have to attend next time.
(2) To allow the proceedings in England to be progressed.
(3) To allow issues such as jurisdiction and forum non conveniens to be considered carefully on both sides prior to the options hearing which is, of course, an important procedural stage of the case and the appropriate point at which to decide how best to progress the action. This case is a procedural minefield and a child welfare hearing is not the correct time to determine technical issues. In any event, I did not consider it appropriate at this stage to make any orders, which might be inconsistent with the residence order, granted in favour of (Mrs B) at Willesden County Court.
(4) To allow (Mr B) to take further steps to obtain Legal Aid for this case."
- On 3 June 2003, Mrs B lodged a motion in the Scottish proceedings in which she asked the court to discharge the options hearing and sist (stay) the cause to allow her Legal Aid application to be determined and to allow the English court proceedings between the same parties and in respect of the same child to be concluded. A hearing on this motion took place before Sheriff Harris on 13 June 2003. For reasons, which are unclear to me, Mrs B applied for the motion to be withdrawn, and it was.
- At the combined continued child welfare hearing and options hearing on 27 June 2003 in the Scottish proceedings, both parties were personally present. Sheriff Cusine presided. Both parties had solicitors with them. The Sheriff continued the options hearing until 9 July 2003, and excused the non-attendance of the parties on that date.
- On 9 July 2003 the case was called again before Sheriff Harris. Both parties were represented by solicitors. At the conclusion of the hearing, the Sheriff pronounced an interlocutor as follows: -
"The Sheriff ex proprio motu, discharges the continued options hearing fixed for today and thereafter; sists the cause for the matter to be determined in England."
- Mr B appealed. His note of appeal was in the following terms: -
"Despite orders made by the Sheriff Principal, Sheriff Buchanan and Sheriff Cusine stating proceedings would be continuous in the Scottish court and the matter will not be sisted. Sheriff Harris has sisted proceedings. Aberdeen Sheriff Court has primacy over the English court actions given this is a divorce action and the issue of residence has been raised in these proceedings. Furthermore, Sheriff Buchanan said at the hearing of 30 May 2003 that the Scottish courts have the power to not recognise the orders of foreign courts. "English courts are foreign courts" Scottish courts have the power to effectual ignore English orders [sic])".
- In accordance with the Scottish procedure, Sheriff Harris wrote a note in response to the pursuer's appeal in the course of which he said: -
"I was informed that there are proceedings relating to the child pending before the Family Division of the High Court of Justice in England and that a hearing is fixed for 22 August 2003 at which a final determination of the English action is expected.
In these circumstances I was of the view that it would not be appropriate to fix a date, or indeed, to determine any future procedure, while pending proceedings relating to the child are at an advanced stage in another jurisdiction. Accordingly, I discharged the continued options hearing and sisted the cause to await the outcome of the English action.
With regards to the grounds of appeal I would comment that I am unaware of any "order" by the Sheriff Principal or any other Sheriff that this cause " will not be sisted". On reading of the Sheriff Principal's note attached to his decision dated 24 February 2003 he is of the view that "…. The Sheriff might have to consider the possibility of a sist…. ", also, I would respectfully disagree with the basis for the appellant's statement that "Scottish courts have the power to effectual [sic] ignore English orders."
- On 22 August 2003, in the High Court of Justice in England, Sumner J heard Mr B's application and reserved judgment to 29 August 2003. As I have already recorded, he dismissed Mr B's application, and directed that a copy of his judgment be sent to the Sheriff's court in Aberdeen. On 1 September 2003 Mr B filed a notice of application for permission to appeal.
- On 9 September 2003 Mrs B, given the uncertain status of the residence order made in the Willesden County Court on 29 November 2000, reapplied in the High Court for a residence order in relation to R.
- On 30 October 2003, Ward LJ granted Mr B permission to appeal on the jurisdiction issue. The application for permission was, of course, a hearing without notice to Mrs B and those advising her. In a generous attempt to assist Mr. B as a litigant in person, Ward LJ identified two possible arguments as being open to Mr. B. The first was that if jurisdiction had been once wrongly taken by the English court by the issue of the proceedings, which resulted in the order of 29 November 2000, then those proceedings were "forever tainted with that lack of jurisdiction". The second was what Ward LJ described "as another highly technical argument" namely that if the issue was "the pure, dry legal issue of jurisdiction then perhaps that not being a question relating to the upbringing of a child, Section 1 of the Children Act does not apply and the welfare of the child is not the paramount consideration of the court as Sumner J treated it to be".
- It is quite clear, that Ward LJ – correctly in my view – considered that there was nothing in either point. The reason he gave permission was different. He said: -
" 11. If the matter had stood there I would have dismissed this application, but Mr B whose passion is obvious, has applied to the Scottish courts for orders, and in his written submissions to me, which he read to me this morning, he records the Sheriff in Aberdeen observing, and I have no doubt accurately, that the Court of Session does have the power not to recognise orders of a foreign court, the courts of this country being treated for that purpose as foreign courts.
12. At the moment I am told those proceedings are stayed or sisted, though I am not entirely sure why. I am not entirely sure that the Scottish court does in fact see that this is some challenge to its power to act as it can, but it seems to me that it would be most unseemly for the Court of Session to be engaged in a territorial turf war with the High Court of Justice in England. Quite exceptionally, therefore, I will give permission on the question of this jurisdictional issue because if there is doubt as to which court should be dealing with the matter, that constitutes a compelling reason for the court of appeal to become involved. I do so with reluctance…."
- Ward LJ's judgment granting permission was given on 30 October 2003. At that point, in Scotland, the matrimonial proceedings were, of course, sisted by order of Sheriff Harris made on 9 July 2003 (see paragraph 49 above). Mr. B had appealed that order. It is quite clear from the extract from Ward LJ's judgment which I have cited that he was not aware of the contents of Sheriff Harris' note (which I have set out at paragraph 51 above) and the Sheriff's express disagreement with Mr. B's proposition that the "Scottish courts have the power effectual (sic) to ignore English orders". It is transparently clear from the record of the Scottish proceedings that at no stage have the Scottish courts perceived themselves as being in competition, or engaged in a "territorial turf war" with the High Court of Justice in England. Nor, of course, would Ward LJ have thought so had he been placed fully in the picture.
- On 15 December 2003 Mr B made an emergency application for all orders of the Willesden County Court to be dismissed on the grounds that they were "fraudulently obtained". On 18 December 2003, that without notice application was refused by District Judge Bradley in the Principal Registry. It appears that Mr B made a further application on 5 January 2004 to the Principal Registry, the terms of which are unknown to us.
- On 20 January 2004 Mrs B's application for residence dated 9 September 2003 was adjourned pending the outcome of the current appeal.
- On the same day, the Sheriff Principal, Sir Stephen Young QC, gave judgment in Mr B's appeal against Sheriff Harris's sist of the Scottish proceedings ordered on 9 July 2003. In a full and very careful judgment, of which we have a transcript, the Sheriff Principal dismissed the appeal and continued the stay (sist). Having recited the history both of the English and the Scottish proceedings, the Sheriff Principal continued –
"15. Opening his appeal, (Mr B) began by launching an attack against (Mrs B's) agents who, according to him, had deliberately misled this court about what was being done about (Mrs B's) application to the Scottish Legal Aid Board to grant Legal Aid to her for the purposes of the appeal with the result that there had been unnecessary delay in fixing this. In a nutshell, Mr B maintained that these agents had been guilty of either contempt of court or perjury, and that I should deal with them accordingly.
- Having recorded Mrs B's solicitors' response (namely a failure on the part of the Scottish Legal Aid Board to respond to letters) and Mr B's assertion that the solicitors were not telling the truth when they asserted that they had written to the Board, the Sheriff Principal said he would enquire into the matter but that it had no bearings on the merits of the appeal.
- The Sheriff Principal then set out Mr B's case with great care. Having then set out Mrs B's response, he concluded as follows: -
"24. It should be clearly understood that the only issue which arises in this appeal is whether or not the Sheriff's decision on 9 July 2003 to sist in the present action should be reversed. This decision was made by the Sheriff in the exercise of his discretion, and it is well settled that an appellate court may only interfere with such a decision if it is shown that the court of first instance has misdirected itself in law, misapprehended the material facts, taken into account an irrelevant fact, left out of account a relevant factor or reached a decision which may be categorised as wholly unreasonable or plainly wrong. In certain situations an appellate court may also interfere if additional material has come to light, which was not before the court of first instance or if there has been a material change of circumstances since it made its decision. Unless one or more of these grounds are established, it is nothing to the point that the appellate court might have reached a different decision on the facts from that which was reached by the pursuer both in his Skeleton Argument and in the course of the hearing on 8 January 2004. It will be observed that he said nothing at all about wanting to pursue his crave for a decree of divorce against the defender. In the circumstances I am quite unable to hold that he has made out any ground upon which I could properly interfere with the decision of the Sheriff. Indeed, I will go further and say that I think that his decision to sist the present action in light of what was then the forthcoming hearing in the Family Division in London, which had been fixed for 22 August 2003, was entirely sensible in the circumstances. I have therefore refused this appeal. Of course matters have moved on since then, and it is always open to the pursuer at any time to apply to the Sheriff by motion to recall the sist, and it would then be for the Sheriff to determine the application in light of the prevailing circumstances. But, without seeking to fetter the Sheriff's discretion in the event of such an application being made, I think it is only right to suggest to the pursuer that he ought to consider whether he is being realistic in hoping that this court would take it upon itself to make any order in relation to his child so long as there are proceedings involving the welfare of the child continuing in the courts in England. (My emphasis)
25. In any case it may be of assistance to the Judges of the High Court of Justice in England, I have asked that a copy of this judgment should be sent to the Royal Courts of Justice. And in this context I may perhaps observe that I notice the concern of Lord Justice Ward in paragraph 12 of his judgment dated 30 October 2003 in which he stated "it seems to me that it would be most unseemly for the Court of Session to be engaged in a territorial turf war with the High Court of Justice in England". So far as I am aware, the proceedings in Scotland in relation to this child have been confined to the Sheriff court here in Aberdeen, and the Court of Session has had nothing to do with the matter. More importantly, it seems to me that it was precisely in order to avoid such a "territorial turf war" that the sheriff thought it right to sist the present action on 9 July 2003. There are in fact provisions to be found in sections 25-32 of the Family Law Act 1986 in regard to the recognition and enforcement in one part of the United Kingdom of orders about the welfare of a child made by a court in another part of the United Kingdom."
- I would like to pay tribute to the full and careful judgment of the Sheriff Principal in this case. In my judgment, it is a model of clarity and good sense. It demonstrates the mutual respect which the English and Scottish courts have for each others' jurisdictions, and by continuing the stay of the Scottish proceedings it recognises the overwhelming reality that the proper forum for the determination of issues relating to R is the High Court of Justice in England and Wales.
The judgment of Sumner J
- Ironically, it seems to me that a recitation of the procedural history in this case answers the questions raised in this appeal almost without reference to the clear judgment of the judge in the court below. However, the fact that this court is able to understand the proper structure of the case is in large measure due to the care with which Sumner J unravelled the proceedings.
- In particular, I am grateful to Sumner J doing something that he did not need to do. Mr B appeared in person before Sumner J, who reserved his judgment, and put it into writing. It was therefore immediately available to Mr B and to the courts both in England and Scotland. It thus stands as a bench mark both for the Scottish and the English courts in their understanding of the proceedings and his reasons for concluding that R's future should be decided in England. In these circumstances, it is only right that I should record his conclusions in full. I begin, however, at the paragraph which precedes them: -
"45. In all (Mr. B) exhibits just over 100 pages of letters and statements. They go as far to show the extent to which the father has taken his sense of grievance. They are of less assistance in showing that his real interest is in R and establishing or re-establishing his relationship with her. I have glanced at them. It is sad to see so much energy going into complaints about others and so little time spent on ensuring that whatever misfortunes he may have suffered, he can rise above them and help his daughter.
46. The father is no longer pursuing his application for a residence order. He seeks contact. The only terms upon which he is prepared to consider that is if R is in Scotland and proceedings continue there. He will not entertain seeing R in England. The result is that he has deprived himself and more importantly R from a relationship since September 2000.
47. He has not cooperated latterly with CAFCASS. He has withdrawn undertakings in relation to a passport. He has sought to withdraw others unsuccessfully, which stopped him seeing R at school. He threatened the school in January 2003 that he would use force to do so. I pursued that with him in court in order to see if I could assist in ensuring he had contact with R. He was not interested in that. He says he has lost the passport. I suggested means whereby that difficulty could be resolved. It was not to be.
48. The father's burning sense of injustice and obduracy means that he cannot come to terms in any way with R's present position. Rightly or wrongly the fact is that she has now been settled with her mother in South East London for 3 years. She is doing well. Difficulties in journeys for contact by the father from Scotland could be overcome despite his debts.
49. He is returning for this judgment. I sought unsuccessfully because of his resistance to ensure he could see R meanwhile. His blinkered approach means that he will not consider whether R is or is not settled here and whether it is or it is not now to her advantage to move to Scotland. Assuming that he is right in saying the mother was wrong to leave Scotland, not to disclose her address, and that she wrongly obtained a residence order, I have to deal with the position as it is today.
50. On the basis of what is in R's best interests because her welfare is my primary concern, the father must put forward some arguments about why R's present situation should be upset. The fact that the mother took R from Scotland, that she is a Scottish child, and that a court made an incorrect order, are not now good enough reason to either move R or the proceedings to Scotland. Nor is his declaration that he will only see her there.
51. Having read through so much of the papers and seen the father it is likely that, despite his deep feeling of being wronged, he may have much to offer R, which would be to her advantage. I hope that however buffeted he feels by fate and however badly he considers he has suffered at the hands of English courts, he will not lose sight of his primary responsibility and obligations to her which as a father he should meet. It is not easy to see why she should not feel abandoned by him.
52. The father asked me to transfer future proceedings to Scotland. In effect he invites me to put the same stay on proceedings here as the Aberdeen Sheriff's court did on proceedings there last month. He was earlier content to argue residence and contact here. He had an order for contact last November. He was represented and withdrew his application for residence in December. He was present in the Court of Appeal in April 2003.
53. I see no good reason to do so. The present position is that R, now just 6 years of age, has spent half her life living with her mother in England. The mother obtained a residence order in her favour within a year of leaving Scotland. This could not lawfully be done under statutory provision, which are not well known. I accept that keeping R's address hidden does not reflect well on the mother. But the father was able to trace her when he applied to court.
54. After a year the mother could have properly brought proceedings in England. They have in fact taken place here. The father has participated. CAFCASS reports have been prepared, and the father no longer disputes R residing with mother. I have not seen the signs of corruption and conspiracy of which the father speaks in going through the papers.
55. The father has shown that he can obtain funding to attend the High Court in London. There is no aspect of his claim, which cannot be ordered by this court. That would include directing the mother to take R to Scotland for contact with father if that was in her best interests. The contact could be for a short or a longer time.
56. It is inconvenient for father to attend courts in England but it has not stopped his attendance. It is more inconvenient for mother to attend court in Scotland when she has the care of R with her disabilities.
57 I see no sufficient factor, which would be in R's interest nor on the balance of convenience to the parties to order that the mother may no longer litigate in England. All the arguments go the other way. The mother lives here and has been involved in litigation with the father here for more than 2 years. I see no reason to change that now.
58. That means I should dismiss the father's present application. That does not prevent him seeking any other order in this court nor prevent him seeing R by agreement or as a result of a court order.
59. It does bring this hearing to a conclusion. I am aware that the father may now renew such proceedings in Scotland as he chooses and the court permits. I will discuss with him a proposal that the Sheriff's court in Aberdeen may find it helpful to see this judgment so that the background to any further application in that court by the father is more readily understood."
- Mr B's argument that - as Ward LJ formulated it - "if jurisdiction was once wrongly taken by the English court by the issue of the proceedings which commenced this litigation then the proceedings are forever tainted with that lack of jurisdiction" does not bear examination. All section 41 of FLA 1986 does is to treat a child in R's situation as habitually resident in Scotland for the period of one year from the date of her wrongful removal in order to ensure that the Scottish court retains jurisdiction over her in any proceeding instituted within that year.
- As a matter of fact, of course, R plainly became habitually resident in England some considerable time before September 2001. However, the effect of section 41 is that had Mr B taken proceedings in Scotland before September 2001, or availed himself of the liberty to apply contained in the order of District Judge Morris made on 29 November 2000 at any point before September 2001 the English court would have been bound to have discharged its order for residence. For reasons that are wholly obscure, Mr B neither instituted proceedings in Scotland nor did he apply to the English court until November 2001, by which time, on any view, the English court had jurisdiction over R, which it retains.
The status of the order made in the Willesden County Court on 29 November 2000
- Whilst made without jurisdiction, the status of the residence order made by District Judge Morris on 29 November 2000 is not, perhaps, as cut and dried as might at first sight appear. It was plainly made in ignorance of section 41 of FLA 1986. At the same time, Mrs B has parental responsibility for R as her mother, and R was living with her. The order was made in proceedings under the Children Act 1989 between R's parents. According to Section 8 of the Children Act 1989 the order was one which, albeit made without notice and being thus temporary, "settle (d) the arrangements to be made as to the person with whom the child is to live".
- In my judgment, although made without jurisdiction, the order was not a nullity. The normal rule about orders which, on their face, are regular, but which are in fact made without jurisdiction is that they remain in force until such time as they are discharged: - see Hadkinson v Hadkinson  285, 288 per Romer LJ: -.
It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. "A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it …. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order that was null and irregular and who might be affected by it was plain. He should come to the court that it might be discharged. As long as it existed it must not be disobeyed." (Per Lord Cottenham LC in Chuck v Cremer (Cooper temp. Cott. 205,338).
- The same principle is enunciated in the Privy Council case of Grafton Isaacs v Emery Robertson  1 AC 97, 101E-F to 102C per Lord Diplock and (in relation to undertakings) in the decision of this court in Johnson v Walton  1 FLR 350. In my judgment, therefore, although made without jurisdiction, the order of 29 November 2000 stands until such time as it is discharged.
- On the facts of this case, section 41 of FLA 1986 ceased to have effect in September 2001: thereafter the English court had jurisdiction over R. Mr B made an application to the English court for relief, and the English court has remained seized of the case ever since. There is, accordingly, in my mind no doubt whatsoever but that the English court has jurisdiction to make orders under the Children Act in relation to R.
- I would therefore answer the first question posed in paragraph 1 of this judgment in the affirmative.
What is the effect of the subsequent Scottish divorce proceedings on the English Children Act proceedings?
- I therefore turn to the second question. What effect does the institution of the Scottish divorce proceedings have on the English proceedings under the Children Act 1989? Does the institution of divorce proceedings in Scotland by Mr. B deprive the English courts of jurisdiction? And if not, should the English court nonetheless decline to exercise its jurisdiction in order for the issues between Mr and Mrs B relating to R to be heard by the Sheriff in the Scottish divorce proceedings?
- The first point is, as the Sheriff Principal held, that the Scottish court plainly has jurisdiction to entertain divorce proceedings between Mr and Mrs B based on Mr. B's habitual residence / domicile in Scotland, and the institution of those proceedings plainly gives the Scottish court jurisdiction to make orders in relation to R. However, in my judgment, the Sheriff Principal was equally correct when he stated that it is one thing to say that the court may have jurisdiction and quite another to say that it does have jurisdiction or that even if it does, it should exercise that jurisdiction.
- There are, in my judgment, two clear reasons why the Scottish court does not currently have jurisdiction to make orders in relation to R in the Scottish divorce proceedings. The first is that for a jurisdiction to exist, the proceedings in Scotland must be "continuing" (see FLA 1986 Section 2A(2)). In my judgment the proceedings are not "continuing" because they have been stayed by the order of Sheriff Harris on 9 July 2003, his decision being upheld on appeal by the Sheriff Principal on 20 January 2004. It will be recalled that the interlocutor pronounced by the Sheriff was that he "sists the cause for the matter to be determined in England" (see paragraph 49 above).
- The second reason simply echoes the first. Section 13(6) of FLA 1986 states: -
"A court in Scotland which has jurisdiction in matrimonial proceedings to entertain an application for a (Part 1 order) with respect to a child may make an order declining such jurisdiction if -
(a) it appears to the court with respect to the child that ….
(ii) but for Section 3(2), 6(3), 20(2) or 23(3) of this Act a court in another part of the United Kingdom would have jurisdiction to make a Part 1 order or an order varying a Part 1 order; and
(b) the court considers that it would be more appropriate for Part 1 matters relating to that child to be determined in that other court or part."
- The references to Section 3(2), 6(3), 20(2) and 23(3) are to continuing matrimonial proceedings in Scotland or Northern Ireland. The sist imposed by Sheriff Harris and upheld by the Sheriff Principal is a manifest demonstration of the Scottish court declining jurisdiction, a decision with which I respectfully agree. There is, accordingly, in my judgment, an effective agreement between the two jurisdictions that the proper forum for proceedings relating to R is England and Wales.
The arguments advance on behalf of Mr. B
- For Mr B, Mr Nicholas O'Brien has done his best to make bricks without straw, and has sought manfully to reformulate Mr B's highly unattractive submissions in a forensically acceptable way. He describes the purpose of FLA 1986 as being to prevent jurisdictional disputes concerning children whose parents move them from one part of the UK to another. He correctly summarises the effect of Section 41 of FLA 1986. However, he describes the effect of Sumner J's refusal to discharge the order of District Judge Morris dated 29 November 2000 as having the effect that R's residence is governed by an ultra vires order which, he submits, is repugnant to the purposes of forum conveniens established by FLA 1986. Accordingly, he argues, the order should be discharged and the matter considered on its merits by a court in Scotland (or at least on Mrs B's new application in England) free from the distorting effect of jurisdictional issues. For the reasons I have already given, I cannot accept this argument.
- Mr. O'Brien goes on to submit that District Judge Morris' order had the improper effect of the English court becoming the forum for disputes because Section 14 of FLA 1986 has the effect of requiring a parent living in one jurisdiction to make any applications in the country where an issue has already been decided. Accordingly, he argues that Mr B was precluded from making any application concerning R in Scotland as the residence order "settled the arrangements as to where the child shall live".
- I have no hesitation in rejecting this submission. All Section 14(1) of FLA 1986 does is to give a court in Scotland which has jurisdiction to make a residence order the discretion to refuse to entertain an application in any case where the matter in question has already been determined in other proceedings. It also gives the Scottish court the power to stay or sist proceedings for residence or contact where there are proceedings relating to the same subject matter continuing outside Scotland or in another court in Scotland or where it would be more appropriate for those matters to be determined in proceedings outside Scotland or in another court and proceedings are likely to be taken there.
- In my judgment, section 14 is of no relevance prior to September 2001. As I have already stated, if Mr B had applied to the English or Scottish courts prior to September 2001 this Scottish courts would have had jurisdiction, and the English court would have had no alternative but to discharge the residence order made on 29 November 2000. Section 14 would not have prevented Mr. B making that application.
- Mr O'Brien urges us to attach no significance to the terms of the application issued by Mr B in the Willesden County Court on the 1 November 2001. It is clear, Mr O'Brien submits, that Mr B wished to challenge the wrongful assumption by the English court of jurisdiction over R: this had been made very clear by Mr B both at the hearing on 22 February 2002 and in his evidence in the English proceedings.
- As I indicated earlier, this court cannot adjudicate in relation to what may or may not have occurred between Mr B and his advisers. The simple fact of the matter is that (a) the English court had jurisdiction after September 2001 and (b) Mr B made an application to the court on which the court has proceeded. The only reason the Scottish court did not take jurisdiction was because Mr B failed to invoke it before September 2001. As both the Scottish and the English jurisdictions are now agreed, R has been living in England for the best part of four years, and England is the obvious place for her future to be decided.
- Mr O'Brien criticises Sumner J for considering the balance of convenience. He submitted this amounted to a continuing wrong done to Mr B simply because it had taken so long to have the issue of jurisdiction considered. Insofar as he considered that it was more inconvenient for Mrs B to litigate in Scotland than for Mr B to litigate in London, the judge was relying on something, which could not have been a legitimate consideration in November 2000. At that point, Mrs B was required to proceed (if at all) in Scotland. Therefore, Mr O'Brien submitted, she should not have been treated as entitled to that advantage.
- I do not understand this argument. As I have now said several times, jurisdiction vested in the Scottish courts up to the end of September 2000. Up until that point, Mrs B would have had to have litigated in Scotland had Mr B instituted proceedings there or applied to discharge the English order. Now that proceedings have been ongoing in England for more than three years, it was entirely appropriate for the judge to consider the forum conveniens argument, and to take into account the fact that, as the carer of a Down Syndrome child, it would be more difficult for Mrs B to litigate in Scotland than for Mr B to litigate in England.
- Finally, Mr O'Brien referred us to the case of M v M (Abduction: England and Scotland)  2FLR 263, a decision of this court under the Domicile and Matrimonial Proceedings Act 1973. In that case a married couple went to live in Scotland with their two children. The father was Scottish: the mother English. The mother left the family home and took the children to England without the father's knowledge. She then obtained an ex-parte residence order and a prohibited steps order to prevent the father from removing the children. She also issued a divorce petition. The Circuit Judge in England made an ex-parte injunction restraining the father from instituting proceedings in Scotland. The judge decided that England was the appropriate jurisdiction for the divorce proceedings.
- The father appealed and this court allowed his appeal. It found, first, that the judge had been wrong to decide either that the children had no habitual residence or that they were habitually resident in England. Secondly, this court decided that the grant of an injunction was inconsistent with the legislative framework provided by the Domicile and Matrimonial Proceedings Act 1973. By virtue of Schedule 1, paragraph 8(1) to that Act, if a petition was presented in that part of the United Kingdom where parties were habitually resident when they last lived together, then any earlier petition presented in a different part of the United Kingdom by the other party to the marriage had to be stayed in favour of the petition presented in the place where the parties were habitually resident. Accordingly, Parliament not only permitted the father to present his petition in Scotland, but expressly provided that if he did so, the mother's English proceedings should be stayed, and the English court should thereafter have no jurisdiction to make an order under Section 8 of the Children Act 1989 unless it was necessary to do so in order to deal with urgent matters.
- Mr O'Brien relied on a number of passages from the judgment of Butler-Sloss LJ (as she then was) firstly at  2FLR 268, she said: -
"Accepting that the welfare of the children is paramount, it is necessary also to accept that the welfare is normally best served by children returning to be dealt with by the court of the jurisdiction of their habitual residence, whether that court returns them from whence they have been sent or keeps them in that country or elsewhere. It is not a decision that they should go and live in that country. It is a decision that the country of habitual residence should assume jurisdiction to decide on the future of the children. Those are the general principles upon which the English courts look at the removal to England of children who should not have been removed without the consent of both parents"
- Secondly at  2FLR 270, discussing the question of forum conveniens, Butler-Sloss LJ said: -
"The immediate welfare considerations of the children as to whether it is convenient for the mother to have to travel to Scotland or to remain in England or whether the speed of the hearing of the case is in the interests of the children, which are appropriate for a consideration of forum conveniens, are not appropriate, in my judgment, to a consideration as to whether there should be granted an injunction to frustrate the husband in this case from starting proceedings in Scotland which looking at it in the light of habitual residence being Scotland and not in the light of there being no habitual residence, shows quite clearly that Scotland is the right place for proceedings to take place. The general considerations as to the welfare of the children long term will, of course, be a matter of consideration for the court which is the court of the jurisdiction of the habitual residence."
- Finally, at  2FLR 272, Butler-Sloss LJ concluded: -
"Consequently the judge was wrong to keep the case within England and wrong not to state quite clearly that the children should have the decision as to their future made in Scotland. So to summarise, the judge should have found habitual residence in Scotland. He should not have granted an injunction to impede the issue of the divorce proceedings in Scotland. He probably should have made for clarity either a s 2A(4) direction under the 1986 Act or granted a s 5(2) stay. None of the orders which he has made can, in my view, stand. Either we have to set them aside or they will die a death when the husband issues his divorce petition in Scotland."
- In my judgment, M v M has simply no application to the present case. There are no concurrent divorce proceedings. Mr B has belatedly issued divorce proceedings in what seems to me a last ditch attempt to resurrect the Scottish jurisdiction over R. In that, he has been properly thwarted both by the courts of Scotland and of England. In M v M, the Statute provided expressly for the Scottish court to have jurisdiction in the circumstances of that case. Those circumstances do not apply here, and the statutory provisions make it quite plain both that the English courts have jurisdiction, and that the Scottish courts have a discretion (which they have properly exercised) to allow the English courts to exercise their jurisdiction.
- For all these reasons I would dismiss this appeal. I am in full agreement with the judgment of Sumner J, and in particular with his view that the sooner the matter R's future is finally resolved the better. Mr B has withdrawn his claim for residence. He has made his contact application immeasurably more difficult by his refusal to contemplate seeing R anywhere other than in Scotland, but the English court remains open to him for his contact application to be adjudicated on its merits.
- Two final points. For the avoidance of doubt, I make it clear that in my judgment when Mrs B issued her application for residence on 9 September 2003, the Scottish proceedings were stayed pursuant to the Sheriff's order dated 9 July 2003, and were not, accordingly, "continuing". It is necessary to make this point because under Section 3 of FLA 1986, the English court's jurisdiction is excluded if "on the relevant date" (that is, 9 September 2003, the date of Mrs. B's application) matrimonial proceedings are continuing in a court in Scotland in respect of the marriage of the parents of the child concerned. In my judgment, these proceedings are not "continuing" if they are stayed, as they currently are. Furthermore, the English court in any event has jurisdiction under the Children Act 1989 to make an order of its own motion: - see section 10 (1)(b).
- Finally, Mr Wright argued that by virtue of Section 36 of FLA 1986, the prohibited steps order made by the District Judge on 29 November 2000 was entitled to recognition in any event. Section 36 provides as follows: -
"(1) This section applies to any order made by a court in the United Kingdom prohibiting the removal of the child from the United Kingdom or from any specified part of it.
(2) An order to which this Section applies shall have effect in each part of the United Kingdom other than the part in which it was made –
(a) as if it had been made by the appropriate court in the other part, and
(b) in the case of an order which has the effect of prohibiting the child's removal to that other part, as if it had included a prohibition on his further removal to any place except one to which he could be removed consistently with the order."
- In my judgment, this Section has to be viewed in the context of the overall structure of FLA 1986. Both the Court of Session and the Sheriff are given jurisdiction by virtue of Section 12 to make emergency orders in relation to children if a child is present in Scotland (or, as the case may be, in the Sheriffdom) on the date of the application, and the Court of Session or Sheriff considers that for the protection of the child, it is necessary to make such an order immediately.
- So far as England and Wales are concerned, a distinction appears to be drawn between the county court or family proceedings court on the one hand and the High Court exercising its inherent jurisdiction on the other. Thus section 2(3) of FLA 1986 provides that the High Court in the exercise of its inherent jurisdiction with respect to children may make a Part 1 order where the child is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection. For the county court to make such an order, the child has to be present and not habitually resident in any other part of the United Kingdom (see paragraph 12 above). There is no provision equivalent to Section 12 (which deals with Scotland only) in Chapter 2 of the Act, which deals with the jurisdiction of courts in England and Wales.
- The difficulty about Mr. Wright's argument, as it seems to me, is that a prohibited steps order is also an order made under section 8 of the Children Act 1989 which, in the circumstances of this case, the English county court is without jurisdiction to make. Speaking for myself, I would regard it as unsatisfactory if the jurisdiction of the English courts to make protective orders where children were present in England and Wales but habitually resident in Scotland was limited to the High Court exercising its inherent jurisdiction. However, I have read and take the force of what Arden LJ says in her judgment at paragraphs 101 to 103 below. As it is not necessary for us to decide the question in the instant case, I would prefer to leave Mr. Wright's point open until such time as it arises directly.
- This case demonstrates the complexities, which can arise when prompt action is not taken after a parental separation involving a move from one part of the United Kingdom to another. Had its jurisdiction been invoked in 2000, the Scottish court would, no doubt, have swiftly reached a sensible conclusion on the issues placed before it. As it is, more than three years later, it now falls to the English courts finally to resolve any outstanding questions relating to R.
- On 20 January 2004 Hedley J adjourned Mrs B's application for residence and Mr B's application of 15 December 2003 to a date to be fixed after the court of appeal hearing on 22 April 2004, the matter to be restored for directions within seven days of the Court of Appeal's judgment, provided such application is authorised by that judgment. This is now what should occur.
- For all these reasons, I would dismiss this appeal.
Lady Justice Arden:
- I agree that this appeal should be dismissed for the reasons given by Wall LJ.
- In his submissions, Mr Wright argued that section 36(2)(a) of the Family Law Act 1986 (already set out by Wall LJ) would have saved the order of 29 November 2000 notwithstanding that it was made without jurisdiction. This provides that an order shall have effect in the other parts of the United Kingdom "as if it had been made by the appropriate court of that part".
- In any event the Court does not need to deal with this point because it has relied on the principle in Hadkinson v Hadkinson, as explained by Wall LJ.
- However, as the question is one of statutory construction and thus may be of some importance for future cases, I would state that in my judgment that this is not its true effect. The purpose of sub-s (2)(a) is to ensure that the relevant order will be recognised and enforced throughout the United Kingdom. There is nothing to indicate that is contemplating what I trust is a rare occurrence, namely a court of the United Kingdom seizing jurisdiction, which it did not in fact have. If Mr Wright's submission was correct, it would not be possible for the court to set aside or discharge the order, which it had made without jurisdiction, which it would normally be obliged to do. I do not consider that this could have been the intention of Parliament when it enacted section 36(2).
- Appeal dismissed.
- No Order as to costs
- Applications for leave to appeal to House of Lords to be filed by 4pm on 14 June 2004 for determination on the papers
- Detailed assessment of parties' costs by Legal Services Commission
- No one to publish or reveal name of the child who is the subject of the proceedings o any other information which will lead to the identity if the child.
(Order does not form part of the approved judgment)
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