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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RAB v. MIB [2005] ScotCS CSIH_60 (12 August 2005)
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Cite as: [2005] CSIH 60, [2005] ScotCS CSIH_60
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RAB v. MIB [2005] ScotCS CSIH_60 (12 August 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Osborne Lord Nimmo Smith Lord Emslie
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[2005CSIH60] XAB/05 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL From the Sheriffdom of Grampian, Highland and Islands in the cause RAB Pursuer and Appellant; against MIB Defender and Respondent: _______ |
Act: Party
Alt: Miss M. Hodge; Anderson Strathern
12 August 2005
The background
[1] The appellant and the respondent were married in Abu Dhabi on 11 November 1996. There is one child of the marriage, namely RIB, who was born in Aberdeen on 5 August 1997, hereafter referred to as "the child". She has Down's Syndrome and has special needs with respect to her health and education. From a date in 1997, the appellant and respondent came to live together in Aberdeen. On 18 September 2000, the respondent discontinued living with the appellant and removed herself from the matrimonial home, taking the said child RIB with her. Thereafter, she took up residence with the child in London. [2] During the course of 2001 and 2002, the appellant was involved in litigation with the respondent concerning the residence of the child and contact with her. In particular, on 29 November 2000, District Judge Morris, sitting in the Willesden County Court, made orders sought by the respondent. He made a residence order in relation to the child; also he prohibited the appellant from removing the child from the respondent's care and control and from the jurisdiction of the court. Because that order had been made without notice to the appellant, it provided that there was to be liberty for the appellant to apply to vary the order, upon giving 48 hours written notice to the respondent's solicitors. On 8 December 2000, the order of the Willesden County Court, made on 29 November 2000, was served on the appellant 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 any legal proceedings in Scotland. However, in the latter part of 2001 and in 2002, the appellant did become involved in proceedings in Willesden County Court relating to the child. On 12 November 2002 a contact order was made in Willesden County Court in favour of the appellant on certain conditions. However, it is understood that the conditions were never satisfied and so contact did not take place. Thereafter, on 17 December 2002 the proceedings in Willesden County Court were transferred to the Family Division of the High Court of Justice in London. [3] In January 2003, the appellant sought to raise an action in Aberdeen Sheriff Court in which there were sought: (1) divorce of the respondent from the appellant on the ground that the marriage had broken down irretrievably by reason of the respondent's desertion of the appellant for the requisite period; (2) a residence order in terms of section 11(2)(c) of the Children (Scotland) Act 1995 in respect of the child; failing which, (3) an order providing for the child to have direct contact with the appellant during certain specified periods. On 27 January 2003 the sheriff in Aberdeen, having heard the appellant on the question of jurisdiction, found that Aberdeen Sheriff Court did not have jurisdiction in relation to the said child and refused to grant a warrant to cite in relation to the initial writ. Leave to appeal was granted. On 24 February 2003, the sheriff principal allowed that appeal, allowed amendment of the initial writ and granted warrant to cite the respondent. Thereafter the action in Aberdeen Sheriff Court became defended and miscellaneous procedure followed. On 9 July 2003, the sheriff sisted the cause, so that the matter to which it related could be determined in England. That decision was made upon the basis that the sheriff had been informed that there were proceedings relating to the child pending before the Family Division of the High Court of Justice in England and that a hearing had been fixed for 22 August 2003, at which a final determination of the English action was expected to be made. Thereafter the appellant appealed against the sheriff's interlocutor of 9 July 2003 to the sheriff principal. After further procedure, a hearing on that appeal took place on 8 January 2004 before the sheriff principal. By an interlocutor dated 20 January 2004, the sheriff principal refused that appeal and adhered to the interlocutor of the sheriff dated 9 July 2003. On 3 September 2004 a motion on behalf of the appellant came before the sheriff in Aberdeen for the recall of the sist pronounced on 9 July 2003. The sheriff, having considered the material put before her and having heard the submissions of the appellant, refused the appellant's motion. In her view, there had been no change in circumstances since the time when the action was sisted. The appellant then appealed that interlocutor of the sheriff, dated 3 September 2004, to the sheriff principal. A full hearing of that appeal took place before the sheriff principal on 7 January 2005. By interlocutor dated 18 January 2005, the sheriff principal refused the appeal and adhered to the interlocutor of the sheriff dated 3 September 2004. Against that interlocutor, the appellant has now appealed to this court. [4] The grounds of the sheriff principal's decision are to be found in paragraph 17 of his judgment. He there says:"The issue which arises in this appeal is whether or not the sheriff's decision on 3 September 2004 to refuse the pursuer's motion to recall the sist should be reversed. This decision was made by the sheriff in the exercise of her 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 fact 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 court of first instance. I have already indicated that I found nothing in the pursuer's bundle of documents which now forms No. 19 of process to persuade me that the sheriff had erred in the exercise of her discretion. It will be observed that at no stage did the pursuer say anything at all about wanting to pursue his crave for decree of divorce against the defender. Having tried as best I could to follow his submissions in the course of the hearing of the appeal, I am not persuaded that he has made out any ground upon which I could properly interfere with the decision of the sheriff. Indeed, in my opinion her decision to refuse the pursuer's motion was perfectly correct. It is true of course, as the pursuer indicated, that many of the witnesses to the events surrounding the removal of the child and the defender from Aberdeen to London in September [2000] are likely to be based in or near Aberdeen. Likewise, other members of the pursuer's family are, I dare say, based in or near Aberdeen, as of course is the pursuer himself. But the evidence of witnesses to what happened over four years ago when the child and the defender left Aberdeen for London and of witnesses who have not seen the child since she left Aberdeen would be likely to be of little or no assistance to a court in determining what arrangements should be made for the care of the child now. What would be of much more value to a court would be the evidence of witnesses who could speak to the child's present situation and the arrangements that might be made for her care in the future. Given that the child and the defender have now been residing in the London area for over four years, it is I think plain that the majority of these witnesses are likely to be in the London area and that the courts there are better placed than this court to conduct such enquiries as are necessary and thereafter make whatever orders are thought appropriate in the interests of the child. That there has so far been no such enquiry (apart from the obtaining of various reports) is directly attributable to the pursuer's unwillingness to engage with the courts in England. In point of fact of course the decision of Roderic Wood J. has now brought the proceedings there to a conclusion with the result, as already indicated, that the sist in this action could have been recalled had it not been for the fact of the pursuer's having chosen to appeal against Roderic Wood J.'s decision. Pending the outcome of the appeal the sist should in my opinion remain in place. In a nutshell, so long as the defender and the child continue to live in London, it does not seem to me to be appropriate that this court should contemplate embarking upon a process which might result in the making of an order in relation to the child which might conflict with an order pronounced by the court in London. In all the circumstances therefore I have refused this appeal."
Submissions of the appellant
[5] When the present appeal came before us, we pointed out to the appellant the limitations on the scope of the appeal brought to this court against the interlocutor of the sheriff principal. In particular, we drew the appellant's attention to what is said by the sheriff principal in paragraph 17 of his judgment, which we have just quoted, concerning the scope of an appeal against a decision reached in the exercise of a discretion. We emphasised to the appellant that the same constraints as had affected the sheriff principal also applied to this court. Thereafter the appellant submitted that both of the sheriffs had misdirected themselves regarding principles for the exercise of discretion. They had taken into account irrelevant matters; they had failed to take into account relevant matters; furthermore, their decisions were plainly wrong. Following the making of that general submission, the appellant entered upon a lengthy and wide-ranging account of the history of what he characterised as the abduction of his child from Aberdeen by the respondent and the subsequent events. He emphasised that there had never been a hearing of evidence in England relating to the child, nor had there been a debate there. The respondent's application to Willesden Crown Court in 2000 should never have been entertained, since that court did not have jurisdiction in the matter. The appellant claimed that the issue of jurisdiction of that court had never been resolved and that the order made by it could not stand. The appellant then went on to refer to a number of orders made by the English and Scottish courts in relation to the child. It was contended that the sheriff and the sheriff principal had both ignored important matters relating to the history of the case. He expressed his apprehension that the child might be in jeopardy in the event of the respondent remarrying, following divorce, a person of the Muslim faith. It had been wrong for the child to have been removed from Aberdeen where excellent facilities had existed to meet her special needs. The defender's contention was that the Scottish courts had to be involved in the matter. The fundamental point that had to be made was that the interim order made in relation to the child in England had been recognised to be bad. In this connection, the appellant drew our attention to the decision of the Court of Appeal (Civil Division) on appeal from the Family Division (Mr. Justice Sumner) in the proceedings between the appellant and the respondent, B v. B (28 May 2004) [2004] EWCA Civ 681. A copy of the decision of the Court of Appeal was furnished to us. The appellant did recognise, however, that the decision of that court was not favourable to his contentions before it.Submissions of the respondent
[6] Counsel for the respondent drew our attention to what was said by the sheriff principal in paragraph 17 of his judgment, which we have quoted. Before there could be any interference with the sheriff's exercise of her discretion, one or more of the factors described in that paragraph had to be shown to exist. Counsel then went on to examine the judgment of the Court of Appeal in detail. She pointed out that ultimately that court had refused the appellant's appeal on jurisdiction. The reasoning of the court could be seen from paragraphs 67 and following. It was submitted that it was for the appellant to show why the exercise of the discretion which he attacked was flawed. In this connection reference was made to G v. G [1985] 1 W.L.R. 648 and Britton v. Central Regional Council 1986 S.L.T. (N) 207. It had been contended that wrong principles had been applied here in the exercise of the sheriff's discretion, but that had not been made out. It was important to recognise the significance of section 14(2) of the Family Law Act 1986, which authorised the court to sist proceedings on an application made to a court in Scotland for an order under Part I of the Act where it appeared to the court that proceedings with respect to the matters to which the application related were continuing outside Scotland. That was the position here. Principles akin to those arising when a plea of forum non conveniens was raised had to be applied. In that connection reliance was placed on Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 A.C. 460; Hill v. Hill 1991 S.L.T. 189 and B v. B 1998 S.L.T. 1245. In the judgment of the sheriff principal, reference had been made to a range of factors supporting the view that the welfare of the child ought to be determined in proceedings in England. Among these was included the factor that, since 2000, the child had been living in London. It was submitted that none of the matters advanced before us by the appellant had been ignored by the sheriff principal. In short, nothing had been said to entitle this court to interfere with the decisions made by the sheriff and the sheriff principal. The issue of divorce, which was sought in the proceedings in Aberdeen Sheriff Court, had not been advanced as a factor in support of the appeal. In any event, were the appellant to desire to obtain a decree of divorce, that could be achieved in the present action, following the making of a suitable amendment to eliminate from the action craves relating to the child.The decision
[7] Although the appellant acknowledged that the grounds on which the sheriff principal could have interfered with the exercise of the sheriff's discretion were limited in the way in which he describes, in paragraph 17 of his judgment, and that, likewise, this court was constrained in a similar way, he proceeded to make wide-ranging submissions relating to many aspects of the events which have occurred following the removal of the child from Scotland by the respondent in 2000. However, we must affirm the view expressed by the sheriff principal in paragraph 17 of his judgment to the effect that the sheriff's decision of 3 September 2004 was made by her in the exercise of her discretion. An appellate court can interfere with such a decision only 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 fact, or reached a decision which might be categorised as wholly unreasonable or plainly wrong. The sheriff principal decided that none of those features had been shown to exist in relation to the sheriff's exercise of her discretion and we find no reason to disagree with him in that regard. He went on to say that in certain situations, an appellate court could also interfere if additional material had come to light which was not before the court of first instance, or if there had been a material change of circumstances since it made its decision. In that regard, at the time when the sheriff principal made his decision, there was pending an appeal before the Court of Appeal in the High Court of Justice in London. While the sheriff principal noted that that was the position at that time, he concluded that that state of affairs did not amount to additional material which would entitle him to review the discretion exercised by the sheriff. It has to be recognised that, since the sheriff principal issued his judgment, the position in regard to the proceedings in England has altered with the determination of the appeal before it by the Court of Appeal. In these circumstances, we consider that it is necessary for us to consider whether that determination amounts to grounds upon which the exercise of the sheriff's discretion should be reviewed. [8] In the judgment of Wall L.J. the questions which the Court of Appeal considered arose for its decision are set out in paragraph 1. It is observed in paragraph 14 that it was common ground that Willesden County Court did not have jurisdiction to make a residence order in the respondent's favour on 29 November 2000. Had the appellant applied to 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 the appellant instituted proceedings in the Sheriff Court prior to September 2001 that court would have undoubtedly had jurisdiction over the child in any such proceedings. That state of affairs is a consequence of the provisions of section 41 of the Family Law Act 1986. [9] The conclusion reached by Wall L.J. is to be found in paragraph 67 and following of his judgment. While recognising that the order made by District Judge Morris on 29 November 2000 was made without jurisdiction, that was not an end of the matter. In paragraph 68 Wall L.J. says this:"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 ... ".
In paragraph 70 he continues:
"On the facts of this case, section 41 of the Family Law Act 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."
Thereafter, Wall L.J. goes on to consider the question of the effect of the subsequent Scottish divorce proceedings on the Children Act proceedings. In particular, as is made plain in paragraph 1 of the judgment, the Court of Appeal was considering the question of whether, assuming that the courts of England and Wales did have jurisdiction to hear proceedings under the Children Act 1989 between the parties, nevertheless the English court should decline to exercise its jurisdiction in order for the issues between the parties to be heard by the sheriff in matrimonial proceedings instituted by the appellant in Aberdeen Sheriff Court. That matter is considered in paragraphs 72 to 99 of the judgment. As we understand it, the conclusion reached is that:
"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."
Wall L.J. goes on in paragraph 91 of the judgment:
"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 of 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."