Scottish Sheriff Court Decisions

Act: Party

Alt: Mr K W Shaw, solicitor, Gray & Connochie, Aberdeen

Aberdeen: 20^th January 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 9^th July 2003; finds the pursuer and appellant liable to the defender and respondent in the expenses of the appeal and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

1. This is an action of divorce. The pursuer and appellant is the husband and the defender and respondent the wife. The pursuer seeks decree of divorce against the defender on the ground that the marriage between them has broken down irretrievably by reason of her desertion of him for a continuous period in excess of two years. He also seeks a residence order to the effect that their only child, Rachel (born on 5^th August 1997), should live with him. Failing this, he seeks a contact order to the effect that he should have direct contact with the child every weekend from 5.00 pm on a Friday to 7.00 pm on a Sunday and for two weeks during each of the school Christmas, Easter and summer holidays.
2. According to the pursuer's averments, the defender left the matrimonial home in Aberdeen on either 18^th or 19^th September 2000 (different dates are given in articles 3 and 4 of the condescendence) taking Rachel with her. The pursuer says that the defender did not discuss the child's removal with him and that she unlawfully removed the child from him with the assistance of the local social work department and police and also a worker from the Down's Syndrome Association. The defender took the child to England but did not tell the pursuer where she was going or why. It appears that she went to somewhere in the London area where she made an application to Willesden County Court under the Children Act 1998 (Case No. W100P01151) for a residence order in relation to the child. This order was granted in the absence of the pursuer who says that it was made on ex parte statements with information provided by the defender which was untrue, and he says that a deliberate attempt was made by her to pervert the course of justice. It appears from subsequent judgements which have been issued by higher courts in England that it is now acknowledged that the Judge at Willesden County Court had no jurisdiction when he made the residence order (on 29^th November 2000) to do so since at that stage in terms of section 41(2) of the Family Law Act 1986 the child was deemed to be habitually resident in Scotland and under section 2(2) of the Act, before the judge could make the order, the child had to be habitually resident in England or Wales or at least, if she was present but not habitually resident there, it was a requirement that she should not be habitually resident in another part of the United Kingdom - which she was in terms of section 41(2).
3. At some stage thereafter the pursuer himself raised proceedings in Willesden County Court (Case No. W101P01218) seeking a contact order in relation to the child (and also a residence order according to the defences). According to the pursuer's averments, on 12^th November 2002 an order was made in these proceedings that he should have contact with the child. Thereafter the proceedings were transferred from Willesden County Court to the Principal Registry of the Family Division of the High Court of Justice in London. There have since been a number of hearings at the High Court of Justice, the purpose and outcome of which are not easily understood by someone such as myself who has not been trained as an English lawyer. What does appear tolerably clear from one of the documents which the pursuer produced at the hearing of the appeal before me is that the defender has presented an application to the Principal Registry of the Family Division in the context of Case No. W101P01218 in which she seeks a residence order in relation to the child and also something called a prohibited steps order. Reference is made in the application to the opinion that the Judge at Willesden County Court had no power to make a residence order in relation to the child on 29^th November 2000 and it is said that, if that order was not valid, "the mother applies herewith for a residence order and prohibited steps order". I was told that a hearing on this application had been fixed to take place at the Royal Courts of Justice in London on 20^th January 2004.
4. It appears that among the various applications which the pursuer has made to the High Court of Justice in London was an application "to transfer the proceedings concerning his daughter". There was a hearing on this matter before Mr Justice Sumner on 22nd August 2003, and it seems that the pursuer asked the Judge to discharge all previous orders that had been made in proceedings in England concerning the child. This application was refused by the Judge and copies of his written judgement dated 29^th August 2003 have been lodged by both parties in the present action. The pursuer evidently sought leave to appeal against this judgement, and on 30^th October 2003 Lord Justice Ward was persuaded, it seems with some hesitation, to grant leave to appeal. A copy of his written judgement dated 30^th October 2003 has been produced by the pursuer. At the hearing of the appeal before me it was not known when the hearing of the pursuer's appeal against the judgement of Mr Justice Sumner would take place, but the pursuer has since written to the sheriff clerk's office enclosing a copy of a letter dated 8^th January 2004 from the Civil Appeals Office at the Royal Courts of Justice in which it is said that the hearing of his appeal will take place on 22^nd April 2004.
5. It is important not to lose sight of the fact that, amidst all these activities in the courts in England, the child has apparently remained in the care of the defender in the London area since they left Aberdeen in September 2000. She is now aged almost six and a half, and she has thus already spent more than half her short life in England. In these circumstances it seems to me to be quite understandable that the courts in England should take the view that in practice, and leaving aside delicate questions of law about the rights and wrongs of what has happened in the past, they were now better placed than the courts in Scotland to make whatever orders are thought necessary in relation to the child's future care and upbringing.

 

6. When the initial writ in the present case was put before Sheriff Cusine on 27^th January 2003 he refused to grant a warrant to cite the defender upon the basis that this court did not have jurisdiction in relation to the child. The pursuer appealed to myself, and on 24^th February 2003 I allowed the appeal and granted a warrant to cite the defender. I issued a note at the time explaining the reasons for my decision. In a nutshell, I was of the opinion that the sheriff ought not to have refused to grant the warrant to cite the defender upon the ground of no jurisdiction unless there was a patent defect of jurisdiction. I was further of the opinion that it was at least arguable that this court did have jurisdiction to make orders in relation to the child in terms of section 10(1) of the Domicile and Matrimonial Proceedings Act 1973, section 13 of the Family Law Act 1986 and section 12(1) of the Children (Scotland) Act 1995. 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 under way), 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 period of 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 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.

7. The action was duly served upon the defender and on 2^nd May 2003 Sheriff Harris granted a motion (which was opposed by the pursuer) to allow her notice of intention to defend to be received although late. On the same day the sheriff fixed 30^th May 2003 as a child welfare hearing and assigned 27^th June 2003 as the date for the options hearing.
8. At the child welfare hearing before Sheriff Buchanan on 30^th May 2003 the pursuer himself was present and the defender was represented by a solicitor. She was not present but the sheriff excused her failure to attend. The upshot was that he continued the child welfare hearing to the date which had been fixed for the options hearing, namely 27^th June 2003, and ordained the defender to appear personally on that date. He wrote a note explaining his decision in the following terms:

1. to allow the defender 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.

1. to allow the proceedings in England to be progressed.
2. 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 the defender at Willesden County Court.
3. to allow the pursuer to take further steps to obtain legal aid for this case.

1. On 3^rd June 2003 a motion was lodged on behalf of the defender in which she asked the court to discharge the options hearing and sist the cause to allow the defender's 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^th June 2003. The interlocutor of that date records that on the defender's motion, there being no objection by the pursuer, the sheriff allowed the motion, no. 8/2 of process, to be withdrawn. There is no further indication given in the papers in the case about what took place, and in particular about what was said, at this hearing.
2. At the combined continued child welfare hearing and options hearing on 27^th June 2003 both parties were personally present. Sheriff Cusine presided. The defender was accompanied by her solicitor, and on this occasion too the pursuer had a solicitor with him. The upshot was that the sheriff continued the options hearing until 9^th July 2003, excused "the non attendance of the parties at the said diet", and continued the child welfare hearing to a date to be fixed at the options hearing.
3. On 9^th 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.

It is this interlocutor which is the subject of the present appeal.

4. On 10^th July 2003 a note of appeal signed by the pursuer himself was lodged in the sheriff clerk's office. It narrates that he appeals to the sheriff principal on the following grounds:

Dispite Orders made by The Sheriff Principal, Sheriff Buchanan and Sheriff Cusine stating proceeding will 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. Further more Sheriff Bachanan said at the hearing of 30^th May 03. [ The Scottish Courts have the power to not recognize the orders of foreigen courts "English Courts are Foreign Courts" Scottish Courts have the power to effectual ignore English Orders.

5. In response to the pursuer's note of appeal Sheriff Harris wrote a note in the following terms:

This family action called before me at a continued options hearing on 9^th July 2003. In this action the pursuer seeks a decree of divorce and a residence order in respect of the child of the marriage, namely Rachel Issa Bennett, aged almost 6, or alternatively, a contact order.

The pursuer has no preliminary pleas-in-law. The defender has five preliminary

pleas-in-law and has lodged a Rule 22 note.

At the continued options hearing the defender's agent sought a debate on her fifth, sixth and seventh pleas-in-law.

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^nd 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 debate, 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 regard 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 a reading of the Sheriff Principal's note attached to his decision dated
24^th 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".

In order to understand the sheriff's note fully it should perhaps be explained that the defender's fifth and sixth pleas-in-law were to the effect that, the court (at Aberdeen) being forum non conveniens, the action should either be dismissed or sisted pending the outcome of the proceedings in the Principal Registry of the Family Division in England, and the seventh plea-in-law was to the effect that there being proceedings involving the same cause of action and between the same parties already raised in English courts, the court (at Aberdeen) should decline jurisdiction in favour of the English courts. The rule 22 note is simply a note in which the defender explains in more detail why she maintains that the sheriff should sustain these pleas-in-law.

6. A hearing of the appeal was duly assigned to take place on 8^th January 2004, and on that date the pursuer appeared before me on his own behalf. The defender was represented by her solicitor.
7. Opening his appeal, the pursuer began by launching an attack against the defender's agents who, according to him, had deliberately misled this court about what was being done about the defender'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 an unnecessary delay in fixing this. In a nutshell, the pursuer maintained that these agents had been guilty of either contempt of court or perjury, and that I should deal with them accordingly.
8. In response, the defender's solicitor explained that the defender had originally been awarded legal aid to defend the action. But this had not covered her opposition to the pursuer's appeal and accordingly his colleague had written to the Scottish Legal Aid Board on 5^th August 2003 for an extension to the legal aid certificate to cover the appeal. On 17^th September 2003 intimation was received from the Board that the application for an extension had been refused. On 23^rd September 2003 the defender's solicitor's colleague had written a lengthy letter to the Board asking them to review the decision and giving certain additional information about the case. Shortly afterwards this colleague had left on maternity leave, and it did not appear from the file that anything further had been heard from the Board. Thereafter, in the middle of October 2003, he (the defender's solicitor) had been contacted by my secretary who had reported that the pursuer was understandably keen to make progress in his appeal and he had responded that he was content that a date for the hearing of the appeal should be fixed. The upshot was, as indicated, that 8^th January 2004 was assigned as a date for hearing the appeal. In summary, the defender's solicitor refuted any suggestion that he or anyone else in his firm had misled the court.
9. According to a letter dated 22^nd December 2003 which the pursuer wrote to the Scottish Legal Aid Board, a copy of which was sent to myself, he claims to have evidence that the defender's solicitor's colleague had not written to the Board on 23^rd September 2003 after all. I shall ask the sheriff clerk to investigate this matter and thereafter I shall take whatever steps, if any, I think necessary in light of her enquiries. But the pursuer should understand that this issue has no bearing at all on the merits of his appeal.
10. Turning to these merits, the pursuer handed to me a document headed "Skeleton Argument" which has appended to it various items including copies of transcripts of certain of the proceedings before the Judges in England, a copy of English Counsel's Opinion dated
    9^th February 2002 and copies of some correspondence to and by various parties including solicitors in Enfield who apparently acted for the pursuer at an early stage in the proceedings in England, the Crown Office in Edinburgh, the pursuer's Member of Parliament, a general practitioner in Aberdeen with whom the defender and the child were registered at one time and a Principal Committee Services Officer employed (so it appears) by Aberdeen City Council. All these documents have been retained as no. 16 of process. They speak for themselves and it is unnecessary that I should set their terms out at length here.
11. The pursuer addressed me at some length in support of what he had said in his Skeleton Argument. He pointed out that it was clear from what had been said on various occasions in the proceedings in England by Lord Justice Ward, Lord Justice Thorpe and Mr Justice Johnson that the Judge at Willesden County Court had had no jurisdiction to make a residence order in relation to the child on 29^th November 2000. He went further than this and submitted that the English courts had no rights to make any orders in any way whatsoever in regard to himself or his child. He said that the Judges had recognised that the removal of his child by the defender from Scotland had been wrongful, and he explained that he had made, as I understood him, three applications to the Principal Registry of the Family Division in London under the Child Abduction and Custody Act 1985 (all of which it seems have so far been refused). He submitted that the courts in Scotland did not need to be concerned about what was done by the English courts in relation to his child since they had no jurisdiction in the matter. He said that the Court of Session had a duty to protect all children in Scotland and that the sheriff courts had power to make interim orders in cases of emergency. In all such cases, so he maintained, it had been held that the child in question should be returned to the habitual residence from which he or she had been removed unless there was evidence of a grave risk to the child. Referring to his first application under the Child Abduction and Custody Act 1985, he said that there had been a deliberate attempt by the solicitors who had originally represented him in England (who were not apparently the same as the authors of the correspondence appended to his Skeleton Argument) not to put his first application before the court. He claimed that they had failed to follow his instructions and (as I understood him) had instead made an application for residence and contact orders. But a moment later he said that he had never applied to the courts in England for such orders.
12. The pursuer then referred to the fact (or so he claimed) that certain files in connection with the proceedings in England had been missing for a period of three years. He explained that his Member of Parliament was still awaiting a reply from the Parliamentary Under Secretary of State in the Lord Chancellor's Department (now the Department for Constitutional Affairs). He stated that this person had indicated that he would send a detailed reply to his Member of Parliament by 13^th November 2003, but that in the event nothing more had been heard from him. The pursuer explained that he had written twenty letters and made three applications to see these files, and all had been refused.
13. The pursuer then explained that he had been present at a further hearing in London on 5^th January 2004. As I understood him, this hearing had taken place to consider yet another application by him to dismiss with immediate effect all orders which had previously been made by the English courts in relation to his child. According to the pursuer, the Judge's decision was still awaited. He explained that he had advised the Judge about the further application which had been made on behalf of the defender for a residence order and a prohibited steps order in which a hearing had been fixed for 20^th January 2004. (A copy of this application is appended to his Skeleton Argument).
14. The pursuer submitted that it was clear that the Scottish courts should take the initiative and protect his daughter and bring the proceedings in relation to her back to Scotland. The English courts, so he said, had erred "big time" (sic) and had admitted that they had made a mistake in that the original residence order ought not to have been granted. The defender had entered appearance in the proceedings before this court and had been granted legal aid for the purpose. There was thus no need for Sheriff Harris to have sisted the action as the Scottish courts did have jurisdiction to deal with his child. He should therefore be allowed to proceed with the present action. The sist should therefore be recalled so that he could make an immediate application under the Child Abduction and Custody Act 1985. Since his child had been illegally removed with the assistance of the police, the social work department and the employee of Down's Syndrome Association he had done everything in his power to secure her return. But he had been refused legal aid for this purpose by the Scottish Legal Board in light of the fact that the Judge at Willesden County Court had already made a residence order in relation to the child.
15. In response, the defender's solicitor submitted that the sheriff had been quite correct to sist the present action. He suggested that the sheriff had obviously felt that in all the circumstances it would be inequitable for this action to proceed, at least as far as the issues of residence and contact were concerned, since the pursuer had himself already raised these matters in London. Having made an application there for a residence order, he had submitted himself to the jurisdiction of the courts in England, and until the hearing in London had taken place there was no point in the sist in the present action being recalled and the matter of this court's jurisdiction to make orders in relation to the child debated. If the pursuer had wished, he could have raised an action in this court immediately after the defender had taken the child to England. But he had not done so. Any issue of jurisdiction which might arise in the context of the defender's latest application in England for a residence order was an entirely separate matter from the issue whether the Judge at Willesden County Court had had jurisdiction to make the original residence order.
16. It should be clearly understood that the only issue which arises in this appeal is whether or not the sheriff's decision on 9^th July 2003 to sist 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 court of first instance. I have given careful consideration to everything that was said by the pursuer both in his Skeleton Argument and in the course of the hearing on 8^th January 2004. It will be observed that he said nothing at all about wanting to pursue his crave for 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^nd 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.
17. In 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 judgement should be sent to the Royal Courts of Justice. And in this context I may perhaps observe that I noticed the concern of Lord Justice Ward in paragraph 12 of his judgement dated 30^th 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^th July 2003. There are in fact provisions to be found in sections 25 to 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.
18. The defender's solicitor proposed that the expenses of the appeal should follow success. I did not understand the pursuer to oppose this, though he did point out that he was currently in receipt of Income Support. I have therefore found the defender entitled to the expenses of the appeal.