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Cite as: [2005] ScotSC 5

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

F33/03

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		ROBERT ANDERSON BENNETT
		Pursuer and Appellant
		against
		MRS MONA ISSA BENNETT
		Defender and Respondent

Act: Party

Alt: Mrs Scott, solicitor, Gray & Connochie, Aberdeen

Aberdeen: 18 January 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 3 September 2004; 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] In this case the pursuer and appellant has appealed against the decision of Sheriff Cowan on 3 September 2004 to refuse his motion, no. 7/2 of process, to recall the sist which was originally imposed by Sheriff Harris on 9 July 2003. This is the second appeal which I have heard in this case. I heard the first appeal (against the decision of Sheriff Harris) on 8 January 2004 and thereafter issued my judgement, incorporating an interlocutor and note, on 20 January 2004. The pursuer subsequently raised a separate action in this court (A1927/04) in which he appeared to be seeking, albeit not in proper form, an interdict to prevent the defender and respondent from removing the parties' child from the United Kingdom and an order to the effect that she should be returned to his care for her own safety pending the outcome of the present action. After the sheriff had granted decree of dismissal in the action A1927/04 the pursuer appealed to myself and on 29 November 2004 I issued my judgement, incorporating an interlocutor and note, refusing the appeal. A copy of this judgement has been lodged in the present action as no. 20 of process.

[2] I set out the full history of these proceedings in my two judgements dated 20 January and 29 November 2004 respectively, and rather than repeat this history here I would refer to what I said in those two judgements. They should be read in conjunction also with the judgements of Lord Justice Wall and Lady Justice Arden in the Court of Appeal (28 May 2004) and of Roderic Wood J in the Family Division of the High Court of Justice (21 December 2004). These judgements are included as nos. 18 and 22 of process respectively in the present action.

[3] A copy of my judgement dated 29 November 2004 (against which the pursuer has appealed to the Court of Session) was sent to the Royal Courts of Justice and was available to Roderic Wood J at the hearing before him on 2 December 2004. There were then two applications before him. The first was that of the defender in the present action in terms of which she sought a residence order and a prohibited steps order in respect of the parties' child. The second application was that of the pursuer in the present action "to discharge all orders made by the English courts up to the present date". Roderic Wood J gave judgement on 21 December 2004 and, in short, he refused the pursuer's application to discharge all orders made by the English courts and gave the defender leave to withdraw her application upon the basis that the orders dated 29 November 2000 as to residence and as to prohibited steps which had been made by Judge Morris at Willesden County Court remained validly in force, there having been no application pursued with any success by the pursuer to vary or discharge them. In addition Roderic Wood J continued an order which had earlier been made by Ryder J on 20 October 2004 to the effect that the defender, by herself, her servants or agents, should be prohibited from removing the child from the jurisdiction of England and Wales without the written consent of the pursuer, or further order of the court.

[4] The basis upon which the present action was originally sisted by Sheriff Harris on 9 July 2003 was to await the outcome of the proceedings in relation to the child in the Family Division of the High Court of Justice in London. The effect of Roderic Wood J's judgement would have been to bring these proceedings to an end with the result that the sist in the present action could now have been recalled and the action allowed to proceed (and the pursuer's application for a residence order in all probability refused - see section 14(1) of the Family Law Act 1986). But I was informed by the pursuer at the hearing of the appeal in this action on 7 January 2005 that he had appealed against the judgement of Roderic Wood J with the result that the proceedings in England are still pending.

[5] Sheriff Cowan issued a note in support of her interlocutor of 3 September 2004. This note speaks for itself and it is unnecessary to set it out in full here. In response to the sheriff's decision the pursuer lodged a note of appeal (no. 17 of process) on 8 September 2004. In short the grounds of appeal were to the effect that the present action ought not to have been sisted in the first place, that this court should insist upon exercising its jurisdiction to make necessary orders in relation to the welfare of the parties' child and that the whole proceedings in the English courts had been tainted by the invalidity of the orders pronounced by Judge Morris on 29 November 2000.

[6] In advance of the present appeal the pursuer lodged a large bundle of documents under cover of a letter dated 11 October 2004 addressed to myself which began: "I enclose my statement for my appeal hearing". This bundle of documents was lodged as no. 19 of process. The defender's solicitor had an opportunity to look through it before the hearing of the appeal, and in preparation for this I too looked through all the documents in the bundle, reading some of them in full and skimming through the rest. I had the impression that these documents were duplicates of the documents in the bundle which was before Roderic Wood J on 2 December 2004 and to which he made reference in paragraph 25 of his judgement.

[7] In the event, when he came to address me at the hearing of the appeal, the pursuer referred only in passing to a handful of the documents in the bundle. But, lest there be any doubt about the matter, I should perhaps make it clear that I found nothing in any of the documents in the bundle which persuaded me that the sheriff had erred on 3 September 2004 in refusing the pursuer's motion to recall the sist.

[8] The pursuer's submissions were both confused and confusing, and hence are not easy to summarise clearly in this note. After confirming that he was appealing against the judgement of Roderic Wood J, he explained that the case had now been referred to the European Court of Human Rights under article 34 of the European Convention on Human Rights upon the basis that all the domestic courts in the United Kingdom had knowingly and consistently denied the child and himself the right to a fair hearing. He stated that he had also requested a hearing under articles 19 and 41. He asserted that the proceedings in this court, and more so those in England, involved perjury, perversion of the course of justice, conspiracy, abuse of power, negligence and misfeasance of public office. He complained that the courts in both England and Scotland had deliberately perverted the course of justice and had ignored the interests of the child which were paramount. He had had no contact with her due to the illegal actions of the judiciary in England and the English courts were covering up the unlawful actions of Judge Morris and also those of the solicitor who had been acting for the defender in England. He explained that he had continually protested that the delay in dealing with the present case had been unacceptable and he referred to the case of P, C & S v United Kingdom in the European Court of Human Rights (16 July 2004) as authority for the proposition that cases of this kind should be dealt with without delay. The parties' child was a Scottish child and the courts in Scotland should therefore have intervened in the matter at an early stage. It was essential that all the orders which had been fraudulently obtained by the defender in the English courts should be dismissed since, in accordance with the statutory scheme, the matter should have been dealt with by the courts in Scotland. The effect of the decision of Lord Justice Wall in the Court of Appeal had been to leave the door open for the abduction of a child despite the provisions of the statutory scheme, the Hague Convention and the Child Abduction and Custody Act 1985.

[9] The pursuer then posed the question whether the situation would have been the same if it had been an English child who had been abducted in the present case. He submitted that the illegal holding of his child in England was a violation of the Child Abduction and Custody Act 1985, sections 13 and 41 of the Family Law Act 1986, section 2(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 (which, as noted in paragraph [4] of my judgement dated 29 November 2004, has been repealed), the Domicile and Matrimonial Proceedings Act 1973 and section 12(1) of the Children (Scotland) Act 1995. The order made by Judge Morris had plainly been made in ignorance of section 41 of the 1986 Act. Ignorance of the law could be no excuse and it had to be asked therefore why Judge Morris had not rectified his mistake. The solicitor who had initially acted for him (the pursuer) in England had gone to Willesden County Court well within the year following the removal of the child and the defender from Aberdeen and had made an application (the details of which were not clear to me) upon which Judge Morris had given a direction that the defender was not to be served. There had then been a breakdown between this solicitor and the pursuer and he had instructed another firm. On 22 February 2002 he had appeared himself before Judge Morris who had refused to listen to him. All this went to show that he had done everything possible within the year after the removal of the child and the defender to put right the error made by Judge Morris. It was not the case that in the present action he was seeking a contact order. All he was seeking was decree of divorce and a residence order to the effect that the child should reside with him. (At this point I drew the pursuer's attention to the latest version of the closed record which is no. 12 of process and which includes a crave for a contact order. The pursuer maintained that there was a later version of the record in which the crave for a contact order had been deleted, but there is no sign of this in the process).

[10] The pursuer continued by submitting that the judges in England and the sheriffs in Scotland had misdirected themselves with regard to the principles in accordance with which their discretion should have been exercised. In exercising their discretion they had taken into account matters which they ought not to have done and had failed to take into account matters which they ought to have taken into account. Their decisions had been plainly wrong. The pursuer then referred to a number of authorities, namely Spiliada Maritime Corporation v Cansulex Limited 1987 1AC 460, Re S 1995 1FLR 314, M v B 1994 2FLR 819, H v H (Minors) 1993 1FLR 958 and M v M 1997 2FLR 263. (For the avoidance of doubt I should perhaps make it clear that these were the only cases to which the pursuer referred, albeit that there were many other cases, including a number from the European Court of Human Rights, in his list of authorities. Nor did the pursuer refer to any cases in Scotland on the matter - see, for example, Hill v Hill 1991 SLT 189, B v B 1998 SLT 1245 and M vM 2002 SC 103). Under reference to Spiliada the pursuer submitted that the courts both in England and in Scotland had wrongly looked at issues of practical convenience rather than the wider picture, and he further submitted that both the sheriffs and I should have given more consideration to the relevant case law on the subject of forum non conveniens before imposing the sist in the present action or upholding it, as the case may be. He asserted once again that he had done everything possible within the first year after the removal of the child and the defender and this should have been taken into consideration by the sheriffs. He had, so he claimed, been denied the opportunity to raise an action in this court and to make an application within the year following the removal of the child and the defender to have the order of Judge Morris set aside. Here he referred to the advice which he had received from a local firm of solicitors in June 2001. He submitted that when he had appeared at Willesden County Court on 22 February 2002 Judge Morris should have seen that there had been eight fraudulent statements by the defender in her original application for a residence order and a prohibited steps order. He posed the question once again why Judge Morris had ordered that the proceedings in his application should not be served on the defender. He explained that his Member of Parliament had drafted a letter to the Minister for Children in which the question had been posed why, if Judge Morris had been ignorant of the law and had been misled by the defender's solicitor, no action was to be taken against this solicitor. The bottom line was that the present case had "gone political now" and that his child was "the piggy in the middle". Under reference to paragraphs 1323 and 1337 in Volume 10 of the Stair Memorial Encyclopaedia he submitted that the residence order which had been made by Judge Morris would never have been registered in Scotland.

[11] In answer to a question from myself, the pursuer acknowledged that the courts in England and in Scotland could not simultaneously make orders in relation to the welfare of the child, and that one court had necessarily to give way to the other. But he then stated that he had maintained all along that he did not recognise the authority of the English courts and he asserted that they were holding his child "in a false jurisdiction". He submitted that the decision of the Court of Appeal dated 28 May 2004 had been wrong and that he had not been given a fair hearing in that court. His counsel, so he said, should have done the research which he had himself done. But every time counsel had tried to look at the history of the case the judges had "closed him down".

[12] The pursuer then submitted that it would be in the child's interest that she should be removed forthwith from the care of the defender and placed in his care in Aberdeen where she would have a stable home along with him and her wider family. This would be better for her than that she should be removed to the Middle East which was what the defender intended to do. He had been offered contact with the child only on the basis that he handed over her passport which he did not have. Referring to H v H (Minors) the pursuer suggested, so it appeared, that one reason for determining the issue of the child's residence in this court would be that the social workers and police officers who had been involved in her removal from Aberdeen in September 1990 were based here. Besides his was a Scottish family. By contrast, the defender and her family had nothing to do with England and were "bogus asylum seekers". While he had been refused legal aid in both England and Scotland, the defender herself had full legal aid and since the witnesses were in Scotland the court here would be the most appropriate to deal with the matter. On the issue of forum non conveniens everything, so the pursuer said, fell on his side of the fence, and here he reminded me that the child had indeed been habitually resident in Scotland.

[13] The pursuer then stated that Roderic Wood J "did not transpire confidence" in him. He had given no assurance of impartiality and his decision had been wrong in law. Moreover he had prejudiced the appeal to myself by sending a copy of his judgement to this court. The Scottish courts should seize jurisdiction now, and indeed this is what they should have done from the outset. The pursuer then referred to section 42(3) of the Family Law Act 1986 and submitted that the English courts had been wrong to say that the proceedings in Scotland were not continuing. In all the circumstances an order should be made now to the effect that the child should be returned to the pursuer in Scotland.

[14] In response, the defender's solicitor submitted that the pursuer had said nothing that day which would justify my interfering with the decision of Sheriff Cowan. If the proceedings in England had been concluded then a fresh motion to recall the sist could have been made. But, the pursuer having appealed against the judgement of Roderic Wood J, the English proceedings remained live and the situation was therefore essentially unchanged. In all the circumstances the appeal should be refused with expenses to the defender.

[15] In a brief reply the pursuer explained that he had referred to a number of cases that had never been brought to the attention of the sheriffs before and which should have been taken into account. The sheriffs, so he argued, had misdirected themselves. It was wrong to preserve the sist in the present action. The European Court of Human Rights would confirm this in due course. His child was as a Scottish child and therefore the courts in Scotland should deal with the case.

[16] Section 14 of the Family Law Act 1986 provides:

14. (1) A court in Scotland which has jurisdiction to entertain an application for a Part I order may refuse the application in any case where the matter in question has already been determined in other proceedings.

(2) Where at any stage of the proceedings on an application made to a court in Scotland for a Part I order, it appears to the court -

(a) that proceedings with respect to the matters to which the application relates are continuing outside Scotland or in another court in Scotland; or

(b) 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,

the court may sist the proceedings on that application.

[17] 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 1990 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.

[18] The pursuer stated that he opposed the defender's solicitor's motion for the expenses of the appeal, and that in any event he was in receipt of Income Support and Incapacity Benefit. But I see no reason to depart from the usual practice that expenses should follow success.

[19] For the sake of completeness I should mention briefly that the pursuer urged me to find that the defender's solicitor had been guilty of contempt of court in having deliberately misled me at the hearing on 24 November 2004 of the pursuer's motion, no. 7/3 of process. The defender's solicitor acknowledged that she had then stated, wrongly as it had turned out, that the defender had been in receipt of legal aid for the purposes of the appeal to myself which was heard on 8 January 2004. In fact she had not been in receipt of legal aid, and the defender's solicitor's colleague who had appeared then (the defender's solicitor herself having been absent on maternity leave) had agreed to represent the defender without legal aid thinking (optimistically as it turned out) that the hearing of the appeal would only last half an hour or so. For my own part, while I recognise that the defender's solicitor was mistaken in what she said on 24 November 2004, I do not believe that she deliberately misled the court. So I should certainly not be prepared to find her to have been in contempt of court.

[20] A copy of this judgement will be sent to the Royal Courts of Justice in London.