Scottish Court of Session Decisions

[1] On 15 June 2000 I granted the following motion:

The defender's first and second pleas-in-law are as follows:

1. Forum non conveniens."

The pursuer had opposed the motion on the following grounds:

[2] The parties, AB and CD, were married in Malta on 20 August 1994. The pursuer is Scottish; the defender is Maltese. A child EF was born on 31 December 1996. He is currently aged three.

[3] The parties separated in March 1998. They were at that time living in Malta, a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The parties are in dispute over the child EF. Each seeks a residence order (in Malta, a custody order). As will be seen from the Record, there are many matters of fact which require to be explored in a proof. One fact which is not disputed is that the pursuer left Malta with EF on 9 November 1999 without the defender's consent. She and EF have remained in Scotland ever since. On her arrival in Scotland the pursuer raised the present action in the Court of Session, seeking interdict to prevent EF from being removed from her care or outwith Scotland, and a residence order in terms of the Children (Scotland) Act 1995 sec.11(2)(c). The defender has lodged defences, and seeks the immediate return of EF to Malta in order that all matters concerning him may be determined by the Maltese courts. Failing the immediate return of EF, the defender seeks a residence order.

[4] It is not possible to obtain a divorce in Malta. Separation is the only remedy. The parties were involved in Maltese separation proceedings in 1998. The Maltese courts made several decisions in relation to EF. On 14 July 1998, in the separation proceedings (which were contested), a Maltese court authorised the parties to separate and awarded custody of EF to the pursuer. The Maltese court also granted an injunction prohibiting the removal of EF from Malta. Subsequently, the pursuer wished to bring EF to Scotland on holiday, on the understanding that she would bring him back to Malta after the holiday. She provided an undertaking to this effect, no.7/4 of process, which is a letter dated 3 September 1998 from the pursuer's Maltese lawyer to the defender's Maltese lawyer stating:

On the basis of that undertaking, the injunction was recalled of consent.

[5] The parties subsequently attempted a reconciliation in Malta during a period from December 1998 until February 1999. That attempt failed. Details are narrated in the Record. The pursuer ultimately left Malta on 9 November 1999 taking EF with her, without the defender's consent. That same day (9 November 1999) the defender made an application to the Maltese courts, seeking authorisation of separation, custody of EF, and an injunction to prevent the removal of EF from Malta. Hearings took place in Malta on 16 and 25 November, 20 December 1999, 25 January and 8 February 2000.

[6] The most recent Maltese court ruling is dated 25 February 2000. The court decided as follows (translated):

1. Accedes to the first demand by authorising applicant to proceed with the personal separation against respondent.
2. While affirming that this court should decide the second demand [that the defender be awarded custody of EF] but in the present circumstances it does not seem that it is the moment or it would be prudent to decide such demand at this stage [while] the minor is not [physically] present under its jurisdiction. Therefore it is reserving to investigate the case better and decides this demand in the supreme interest of the minor, if and when the minor will be brought personally back in the jurisdiction of this court, and in this sense reserves every right due to both parties.
3. Abstains to decide on the third demand [i.e. to order the pursuer not to remove EF from Malta] in view that, as a fact, the minor is not [in] its jurisdiction."

[7] The Court of Session has granted several interlocutors during the course of the present action. Two of particular relevance are as follows:

1 December 1999: Interim interdict was granted on the ex parte statement of the pursuer prohibiting the defender from removing EF from the care and control of the pursuer or outwith Scotland.

5 May 2000: A proof of the parties' respective averments was allowed.

[8] Counsel for the defender submitted that the two-day proof allocated for 29 and 30 June 2000 should be a preliminary proof restricted to the questions whether the pursuer should be ordained to return EF to Malta "in order that all issues relating to [his] care ... can be determined by [the Maltese courts]", and which court and which system of law should decide EF's future. In other words, the proof should be restricted to the defender's first and second pleas-in-law and the defender's first conclusion. Although Malta was not a signatory to the Hague Convention, Malta was the child's home state, and the Maltese courts should decide questions of residence, custody, contact and access. Section 14 of the Family Law Act 1986 (c.55) provides:

1. that proceedings with respect to the matters to which the application relates are continuing outside Scotland or in another court in Scotland; or
2. that it would be more appropriate for those matters to be determined in proceedings outside Scotland or in another court in Scotland and that such proceedings are likely to be taken there,

Section 1(1)(b) of the 1986 Act defines a Part I order as "an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the residence, custody, care or control of a child, contact with or access to a child ..."

[9] Counsel submitted that (i) there had been a determination in respect of EF's residence - in favour of the pursuer, but on condition that the child remained in Malta. (ii) In any event the Maltese court order dated 14 July 1998 granting custody to the pursuer was no longer effective, as a result of the parties' attempted reconciliation: Article 42(1) of the Maltese Civil Code. Once the reconciliation had taken place, each party had rights of custody: Article 131 of the Maltese Civil Code. Accordingly the defender had re-acquired custody jointly with the pursuer. If the parties could not agree about the exercise of parental rights, they should apply to the Maltese courts: Article 131(3). On any view therefore, in terms of Maltese law, the pursuer's removal of EF from Malta was in breach of the defender's parental rights and was illegal. The Maltese court had so held in the decision of 25 February 2000. Further in terms of section 14 of the Family Law Act 1986, there were proceedings relating to residence and contact "continuing outside Scotland", namely the separation and custody proceedings which the defender had raised in Malta on 9 November 1999. The Maltese court ruling dated 20 February 2000 had been made in the course of these proceedings. In these circumstances where there was a dispute as to which court should determine issues of residence and contact, these preliminary issues could and should be decided at the two-day proof fixed for 29 and 30 June 2000.

[10] Counsel made a further submission that it could not be said that his motion for a preliminary proof was incompetent. While a proof at large had been allowed by interlocutor dated 5 May 2000, and while allowance of a proof was normally determinative, the present action was not an ordinary action but was a family action. In terms of Rule of Court 49.33 parties could adjust their respective pleadings until 28 days before the diet of proof. Moreover in terms of Rule of Court 49.33(4) the court may, on cause shown, withdraw the allowance of proof and appoint the action to the procedure roll. Accordingly the practice and procedure relating to family actions was different from that in ordinary actions. It had been open to the defender to seek a procedure roll in terms of Rule of Court 49.33(4), at which the defender could present the same arguments and seek a preliminary proof, but due to shortage of time the present motion had been enrolled. In relation to the proof fixed for 29 and 30 June 2000, two days might be sufficient to accommodate expert and other evidence about the appropriate forum and the appropriate system of law: it was not sufficient for an exploration of the merits of residence and contact. The proof should be restricted to the preliminary issues. There were disputes between the parties both in fact and in law. The pursuer's interpretation of Maltese law was not accepted. Both parties had experts in Maltese law, who would no doubt be called in the course of a preliminary proof. There had as yet been no determination by a Lord Ordinary in Scotland as to whether the child had been wrongfully removed from Malta.

[11] Counsel for the pursuer confirmed that he did not challenge the competency of the pursuer's motion. He accepted that the Rules of Court relating to family actions were flexible. The motion was opposed because there had been no abduction, no wrongful removal, of the child. A proof at large on all questions relating to residence and contact had been allowed on 5 May 2000. The Maltese courts had awarded the pursuer custody on 14 July 1998. The Hague Convention did not apply. When the pursuer had been living in Malta, the defender had evolved a scheme to keep her short of money. He had brought a girlfriend into his house. He had encouraged the child to imitate him in his treatment of and attitude towards the pursuer. The pursuer founded on Article 131(5) of the Maltese Code, which provided:

On the basis of Article 131(5), the pursuer had a legal right under Maltese law to do what she had done. The Maltese court had on 25 February 2000 refused to declare that the child had been wrongfully abducted. Further, even if the principles underlying the Hague Convention were thought to be applicable to the present case in some way, the pursuer had been entitled to do what she had done in order to protect her child from physical and moral danger. This was not an international child abduction case. Rule 70 of the Rules of Court did not apply. The question of contact was quite different from the question of residence. In relation to the plea of forum non conveniens, there were no proceedings pending outwith Scotland which the Scottish courts had to take into account. The defender had tried to obtain custody of EF in the Maltese courts in 1998, and had failed. He had tried again in the Maltese proceedings resulting in the ruling of 20 February 2000, and had again failed. The question of EF's custody had been determined twice. The motion should be refused.

[12] Both parties agreed that the motion was competent. I accordingly dealt with it on that basis. I considered that the parties were in dispute about several fundamental matters. The parties do not agree about the current status and effect of the Maltese court order of 14 July 1998; the current position concerning custody or residence rights relating to EF; the current status and effect of any proceedings in Malta; whether the removal of EF from Malta was illegal; whether the return of EF to Malta would expose him to any physical or moral danger; who should have the care of EF in the future, and which country he should live in. Most significantly for present purposes, the parties do not agree which court and which system of law should determine the issues in dispute. The Hague Convention does not apply, and accordingly it would appear that ordinary Scots law principles of private international law apply: see Stair Encyclopaedia, Vol.17, Private International Law, para.237; Thomson, petitioner, 1980 S.L.T. (Notes) 29. It may be necessary to hear evidence from experts in Maltese law. If, in terms of Scots law principles of private international law, any question of residence or custody should be determined by Maltese law, it would be advisable to have such a matter clarified at the outset of any inquiry. Further the defender has a plea of forum non conveniens. Factors such as the physical presence of the child in Scotland, the appropriate system of law to be applied, the whereabouts of the parties and of any witnesses who are expected to give evidence, the cost of travelling to give evidence, and the existence of earlier proceedings in Malta, may be of relevance: see Maxwell, The Practice of the Court of Session, pp.115-117. Again it would seem advisable to have the question of the appropriate forum decided at the outset of any inquiry. For these reasons, I granted the defender's motion.