Scottish Court of Session Decisions

Pursuer: I. G .Mitchell QC, Mickel (Solicitor Advocate); Hamilton & Burns

Defender: Loudon; Anderson Strathern

8 December 2010

Introduction

[1] This action of divorce commenced in the Sheriff Court at Aberdeen in February 2003 and was remitted to the Court of Session in 2009. It has a long procedural history that has unfolded in parallel with proceedings in England concerning the residence of the child of the marriage. In the present proceedings the pursuer concludes for divorce on the ground that the marriage has broken down irretrievably by reason of the defender's desertion for a continuous period of more than two years, and for various other orders. In her turn, the defender concludes for a residence order in relation to the child of the marriage.

[2] I need not set out in detail the history of this action. It has previously been the subject of opinions of the court addressing issues of recall of a sist ([2005] CSIH 60) and a plea of forum non conveniens ([2008] CSIH 52). The English proceedings have been the subject of a decision of the Court of Appeal reported as B v B [2004] 2 FLR 741. Diets of proof in the present proceedings have been discharged on three occasions. However, when the case called for proof on 9 November 2010, the pursuer sought leave to abandon the action. Senior counsel explained the pursuer's position as follows. He had raised divorce proceedings in Scotland as a means of securing that the issue of the residence of his child was determined in what he regarded as the correct jurisdiction. He recognised that with the passage of time during the protracted court proceedings it was now inevitable that he would not obtain the outcome that he had originally sought, namely a residence order in his favour. He had no interest in divorce per se. He remained aggrieved by the manner in which the courts, especially the English courts, had dealt with the matter, but acknowledged that the present action was not the appropriate vehicle for the pursuance of those grievances. He hoped that in due course he would have an opportunity to re-establish contact with his daughter. In accordance with the pursuer's motion, I dismissed the action quoad the pursuer's claims, finding no expenses due to or by either party. The pursuer and his representatives then withdrew.

[3] Rule of Court 49.32 provides that notwithstanding abandonment by the pursuer, the court may allow the defender in a family action to pursue an order or claim sought in his or her defences. I accordingly heard proof with regard to the defender's claim for a residence order in relation to the child of the marriage. The remainder of this opinion is concerned with that claim.

Defender's claim for a residence order: background

[4] The pursuer and the defender were married in Abu Dhabi on 11 November 1996. There is one child of the marriage, R, who was born on 5 August 1997. In 2000 the defender left the matrimonial home in Aberdeen (without the knowledge or consent of the pursuer) and took R with her to live in the London area. They continue to reside there. Unfortunately, R suffers from Down's Syndrome to a severely disabling degree. In August 2009 she was assessed as having expressive language skills at 15-18 months age equivalent, fine motor skills at 3-year level and a variety of other abilities falling within between these ranges. She also has hearing and mobility difficulties.

[5] After her arrival in London, the defender sought and obtained ex parte an order dated 29 November 2000 by Willesden County Court granting a residence order for R in her favour and an order prohibiting the pursuer from removing R from the care and control of the defender or from the jurisdiction of that court. It is now common ground that the judge in Willesden County Court had no jurisdiction to make a residence order in the defender's favour on 29 November 2000. The pursuer has sought unsuccessfully in the English courts to challenge the validity of this order after expiry of the one-year period specified in section 41(1) of the Family Law Act 1986. I am advised that no subsequent residence order has been made at any time by any English or Scottish court. The pursuer continues to dispute that there is any valid and subsisting English court order with regard to R's residence. For present purposes, it is perhaps most significant to note that there has not been any previous hearing in either England or Scotland in which evidence regarding the welfare of R has been presented to a court.

Current circumstances

[6] At the proof I heard evidence from the defender, from her brother, and from Professor Thomas A W N MacKay, Consultant Psychologist, who had provided a report dated 28 September 2009 and a supplementary report dated 2 February 2010. On the basis of that evidence, I make the following findings.

[7] In addition to R, the defender has a child (N) aged 3. She is not in a continuing relationship with N's father. The defender, R and N live together in a 3-bedroomed flat with access to a communal garden. R has a loving and affectionate relationship with her mother and also relates well to her younger half sister. The children play together and, despite her learning difficulties, R displays a loving and protective attitude to N who, in turn, understands that R has difficulties and demonstrates a caring attitude towards her. The defender does not work and is able to devote herself to caring full time for her two children. She provides R with interesting and stimulating activities, such as shopping, cinema, swimming, the park, eating out and going out in groups with her own friends and their children, in so far as she can do so without upsetting R by disturbing her routines. At home the defender utilises materials provided by a speech and language therapist to assist R's communication.

[8] Family support for the defender is available from her mother, brother and sister, all of whom live nearby in London and have a good relationship with R. At weekends and during holidays the defender and her children visit the family home of the defender's mother and often stay over. If the defender were to fall ill, she could call on members of her family to look after the children.

[9] R attends a special school for children within the moderate to severe learning difficulty range. At age 11 she required to transfer from primary to secondary school and was unsettled by the move to a different building. She was assessed by the education authority who recommended her transfer to a school for children with more severe learning difficulties. This recommendation was successfully resisted by the defender who had visited the school proposed and did not consider that R would be happy there. R therefore remains in a school with pupils whose special needs are at a milder level than her own, but she has benefited from this and her head teacher considers that the support which she receives from her mother makes her an easy pupil to have in the school.

[10] In his supplementary report, Professor MacKay set out his conclusions which included the following:

·       R is in good mental health and there are no concerns of any kind in regard to her psychological well-being.

·       The defender has brought R up in a stable and loving environment, which is well suited to meet all of her needs, so that she is a secure, confident, happy and settled child. She receives appropriate schooling, support by a high level of involvement and commitment on her mother's part, and all aspects of her education and care are well provided for.

·       R's place of residence should be as it currently is, namely, at home with her mother and younger sister, and no competent child psychologist or other professional would view a disruption to this arrangement as being consistent with her welfare.

Conclusion

[11] Having regard to the welfare of R as the paramount consideration, I am entirely satisfied that a residence order should be made under section 11(2)(c) of the Children (Scotland) Act 1995 that R is to live with the defender. I accept Professor MacKay's conclusions that R is in a stable and loving environment; that all aspects of her education and care are well provided for; and that any disruption to the current arrangement could not be in her best interests. One could not fail to be impressed by the defender's commitment to providing R with a loving and secure home life and her determination to ensure that R continues to attend the school in which she is happy. In all of the circumstances described above I am of the view that it would be better for R that the residence order sought be made than that none should be made.

[12] It is not in dispute that this court has jurisdiction to make a residence order in respect of R. In terms of section 6(1) of the Family Law Act 1986, the effect of the making of a residence order by this court is that any subsisting order previously made by a court in England and Wales will cease to have effect so far as it makes provision for R's residence. The order made by this court will be recognised in England and Wales as having the same effect as if it had been made by the appropriate court in that jurisdiction (1986 Act, section 25(1)).

Disposal

[13] I sustain the defender's third plea in law and make an order under section 11 of the Children (Scotland) Act 1995 that R is to live with the defender.