Case Reference No: A632/03

 

 

JUDGMENT OF SHERIFF NOËL McPARTLIN

 

in the cause

 

M.A.S.

 

PURSUER

 

against

 

MRS V.D.

 

DEFENDER

 

and

 

R.M.S.

 

PARTY MINUTER

 

 

 

 

EDINBURGH, June 2006

 

The sheriff, having resumed consideration of the cause, allows the answers for the party minuter (26 of process) to be received; refuses to allow amendment of the pleadings in terms of the minutes of amendment for the party minuter (33 and 39 of process) and the answers thereto for the defender (40 of process); finds that the Scottish courts have no jurisdiction in these proceedings; dismisses the minute for the pursuer (25 of process), the answers for the party minuter (26 of process) and the answers for the defender (38 of process); discharges the diet of proof fixed for 17 to 21 July 2006; certifies the proceedings as suitable for the employment of junior counsel; appoints parties to be heard on expenses on

 

 

 

NOTE

 

On 23 November 2004, judgment was issued in the action at the instance of the present pursuer against the present defender for contact between the pursuer and the parties' daughter, who was born on 27 May 1992. The judgment regulated contact on a permanent basis, although I note that it did not become a final judgment until 11 February 2005 when expenses were dealt with. What is now before the court are applications to vary that judgment or to make further orders relating to parental responsibility, which are discussed in more detail below.

 

To begin with, however, the current provisions for jurisdiction in family actions should be noted. When the action began, in October 2003, this court had jurisdiction, in accordance with the Family Law Act 1986, based on the habitual residence of the child in Edinburgh at that time. However, she and the defender moved to Wiltshire early in 2004 and both became habitually resident in England. Once the original action was disposed of, therefore, this court ceased to have jurisdiction based on habitual residence. By the time the pursuer lodged a minute to vary the judgment, he too was habitually resident in England.

 

On 1 March 2005, Council Regulation (EC) No 2201/2003 (known as Brussels II Bis) came into force in Scotland by virtue of the European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005, SSI 2005/42. The Regulations amended the Family Law Act 1986 by the introduction of section 17A, which states:-

 

"The provisions of this Chapter are subject to Sections 2 and 3 of Chapter II of the Council Regulation"

 

Section 2 of Chapter II of the Council Regulation deals with jurisdiction, in cases of parental responsibility, subject to some exceptions, as between Member States of the European Union. In the Final Provisions of the Regulation, Article 66 makes provision for a Member State with two or more legal systems, such as the United Kingdom, by substituting "territorial units" for Member States.

 

It is of particular significance in this case that the Council Regulation supersedes section 15(2) of the 1986 Act. Section 15(2) allowed a court in Scotland, which had made an order with respect to residence, custody, care or control of a child, contact with or, access to a child or the education or upbringing of a child (a Part I order), to vary or recall the original order, which included making any Part I order, notwithstanding that it would no longer have jurisdiction to make the original order. Under the Council Regulation, general jurisdiction in matters of parental responsibility depends on the habitual residence of the child at the time the court is seised but contains nothing corresponding to the provisions of section 15(2) of the 1986 Act.

 

Accordingly, apart from the exception of retaining jurisdiction to modify an access award for a period of three months after a child has moved (Article 9), which does not apply in this case, the courts of a State or territorial unit where a child is not habitually resident can have jurisdiction only by virtue of prorogation. In cases relating solely to parental responsibility (as opposed to cases which also relate to divorce, separation or annulment under paragraph 1), prorogation is governed by Article 12, paragraph 3:-

 

"The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

 

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

 

and

 

(b)                the jurisdiction of the court has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child."

 

 

 

 

 

 

 

 

In considering a conflict of jurisdiction between parts of the United Kingdom, Article 12.3 has to be read along with Article 66.

 

The only exception to the application of the Council Regulation in matters of parental

responsibility of relevance to this case is its non-application to the name and forename of the child (Article 1.3).

 

The present proceedings fall to be considered against that background. The decree in the original action contains the following:-

 

"Grants decree to the pursuer for direct contact with (the child) for six hours one Saturday or Sunday every two months if during school term or during a weekday if in the school holidays and for six hours on an extra day during the Christmas school holidays and on an extra Saturday or Sunday nearest (the child's) birthday, the times and the delivery and pick up points to be arranged between the pursuer's and defender's solicitors three weeks before the contact day where possible with the pursuer's work roster provision; grants an order to the pursuer ordaining indirect contact between the pursuer and (the child) at least once a week by e-mail, card or letter; ordains the defender to send to the pursuer promptly and in advance any change of the address or school of (the child); ordains the pursuer to pay to the defender one half of the school fees ......"

I note that all the procedure in this case, following the final judgment in the original action, took place after the Council Regulation came into force on 1 March 2005. On 4 March 2005, the child herself, who was not a party to the original action, enrolled a motion and minute to be sisted as a party. On 16 March 2005, the pursuer lodged his minute to vary (25 of process), which was received on 1 April 2005, the same date as the child was sisted as a party.

 

Essentially, with regard to direct contact with the child, the pursuer was granted spells of six hours periodically, with times and pick up points as arranged between solicitors. In the minute to vary he seeks fix the contact times, failing agreement, as between noon and six pm.

 

On 4 April 2005, answers (26 of process) were lodged by the child to the pursuer's minute to vary (It appears that they were never formally received, an omission which I have corrected in the present interlocutor). The answers crave a variation of the decree by reducing contact to nil. On the same date, a motion was made at the bar on behalf of the child to vary contact to nil ad interim. The motion was refused but ex proprio motu the sheriff suspended the original contact order, except for contact by e-mail once a week.

 

On 4 August 2005, the child lodged a minute of amendment (33 of process) seeking to add a crave for a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995 that she be known by a different surname.

 

On 22 November 2005, the defender lodged answers (38 of process) to the pursuer's minute to vary. They contained a crave to vary contact to nil.

 

Sundry procedure ensued, including on 23 November 2005, on joint motion, the allowance of a proof on dates to be afterwards fixed. Subsequently, a diet was assigned for the dates 17 to 21 July 2006.

 

On 24 February 2006, a further minute of amendment (39 of process) was lodged on behalf of the child. It included a crave for an order in terms of section 11(2)(a) of the 1995 Act depriving the pursuer of his parental responsibilities and rights in relation to her except insofar as inconsistent with any contact order made by the court. (The pursuer, although never married to the defender, had acquired parental responsibilities and rights by virtue of an agreement under section 4 of the Children (Scotland) Act 1995, entered into in September 1998.) On the same date, a motion was made for an order depriving the pursuer of his parental responsibilities ad interim. It was continued.

 

On 7 March 2006, the defender lodged answers (40 of process) in the amendment procedure. They contained a crave to vary the original order by removing the requirement on the defender to intimate to the pursuer any change in the child's address or school.

 

When the case called on 5 May 2006, it was for a number of purposes - firstly, it was a child welfare hearing, although the child had been excused attendance; secondly, it was a hearing in the amendment procedure under the Ordinary Cause Rules 1993, Chapter 18; finally, it was to deal with continued any continued motions, particularly a motion made at the bar on behalf of the defender to remove ad interim the intimation requirement.

In the event, the hearing was taken up with discussion about the proposed amendments, which the pursuer opposed, mainly on the basis that the Scottish courts had no jurisdiction. Counsel for all three parties produced notes of argument and made submissions, all of which were very helpful.

 

Leaving aside, for the moment, the child's crave relating to change of name, which is not covered by the Council Regulation, the debate crystallised on Article 12, paragraph 3 of the Council Regulation, which deals with prorogation of jurisdiction. Three matters fell to be determined - whether the child has a substantial connection with Scotland (or, perhaps, with the United Kingdom), whether the jurisdiction of the Scottish courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court was seised and whether it is in the best interests of the child for this court to have jurisdiction.

 

In moving the amendments, Mr Ardrey, counsel for the child, submitted that she had a substantial connection with Scotland. She came to live here when she was four years old and left only two years ago. Being fourteen years of age, she has spent most of her life in Scotland. She still has friends here, with whom she sometimes stays. The original action in this court lasted a long time and the child knows this court. Her solicitor is in Scotland, as is the psychologist who has seen the child, with a view to giving evidence in this court.

 

Mr Ardrey submitted, also, that parties had unequivocally accepted the jurisdiction of this court. The pursuer himself, in lodging the minute to vary, had invoked the court in a matter concerned with the welfare of the child.

 

So far as the best interests of the child were concerned, if she had to commence proceedings in England, it would not be in her best interests. Proceedings in this court had been going on a long time and a proof was due. The child had no school examinations this year and would wish the case to proceed. Her solicitor in Scotland was well known to her and legal aid had been obtained.

 

Mr Ardrey's argument in support of this court considering the crave by the child to change her name depended on it being accepted it was a matter to which section 15(2) of the Family Law Act 1986 applied. Referring to Wilkinson and Norrie 2^nd Edition 8.61, he submitted that a child's name was connected with her welfare and, therefore, variable by the original court under the 1986 Act.

 

Ms Brabinder, counsel for the defender, argued that, reading Article 66 along with 12.3, the Regulation required a substantial connection with a Member State, rather than with a territorial unit within the State. However, it might be academic which was the proper interpretation because the child had, in any event, a substantial connection with Scotland (for reasons similar to those advanced by Mr Ardrie).

 

With regard to acceptance of the jurisdiction by the parties, Ms Brabinder noted that it was required "at the time the court is seised." Under Article 16 of the Council Regulation, a court was deemed to be seised when the document instituting the proceedings was lodged with court. In this case, the court was seised when the pursuer lodged the minute to vary and thereby accepted the jurisdiction of the court. Ms Brabinder stated that the provision was important in that it prevented a party who had accepted the jurisdiction of the court having a change of mind. The pursuer, who was legally represented, must be deemed to know that, in considering a variation, the court could make any order under Part I of the 1986 Act, including an order for deprivation of parental rights. The position of the pursuer that each amendment was a new seising could not be right.

 

It was in the best interests of the child, Ms Brabinder submitted, that the case proceed in this court. The child was troubled by the continuing litigation, which caused the defender concern for the child's welfare. The child had indicated to the psychologist that she wanted the case dealt with speedily. The child had school examinations in June and would begin studying for GSE in September this year. Ms Brabinder noted that the pursuer had a motion to sist procedure under section 14(2) of the 1986 Act (while proceedings are raised in the appropriate forum). It could be inferred that he intended to raise proceedings in England, and that after a number of hearings in this court and a proof having been allowed, which was not reasonable. In these circumstances, the motion was opposed.

 

Ms Brabinder sought to distinguish the case of M v M 2001 SC 103 from the present case. In M v M, a contact order made in the sheriff court had been appealed to the Court of Session. At a hearing on the summar roll, the Court was informed that mother, father and child had all moved to England and parties were agreed that the appropriate courts to deal with the issue of contact were the English courts. Accordingly, the Court of Session sisted proceedings in terms of section 14(2) of the 1986 Act. The obvious difference from the present case, as Ms Brabinder pointed out, was the agreement of parties to the sist.

 

She referred also to B v B 1998 SLT 1245, in which Lord Maclean refused to grant a sist under section 14. His Lordship observed that the court must have regard to the principle of forum non conveniens and listed factors to be taken into account - the welfare of the child, the habitual residence of the child, the location of the bulk of the witnesses, expense, the jurisdiction in which a decision was likely to be reached more expeditiously and thoroughly and the circumstances in which proceedings commenced - the list was not exhaustive. Ms Brabinder submitted that a number of these factors favoured the case remaining in Edinburgh and that, in any event, the onus was on the pursuer to satisfy the court that the English courts were the more appropriate in this case and he had not done so.

 

With regard to the child's crave to change her name, Ms Brabinder referred to the case of M v C 2002 S.L.T. (Sh Ct) 82, in which a father obtained a specific issue order preventing the mother of a child changing his surname, it being accepted by the court that the naming of a child formed part of parental responsibilities and rights.

 

On behalf of the pursuer, Ms Scott opposed amendment and moved for a sist of procedure or dismissal of craves - the pursuer accepted that there was no point in proceeding with his minute to vary and intended to raise proceedings in England.

 

Ms Scott pointed out that this was the first hearing in the proceedings to consider the question of jurisdiction under Article 12.3. She submitted that the child had no substantial connection with Scotland and claimed that the defender had argued earlier that she could take the child away from school in Edinburgh because she had no connection with Scotland.

 

Ms Scott observed that there had been no express acceptance of jurisdiction by the parties. Prorogation, therefore, depended on its acceptance in an unequivocal manner at the time the court was seised . Each new crave, she submitted, initiated a new seising. His seeking a contact variation could not mean that the pursuer accepted the jurisdiction of the court to deprive him of his parental rights. All the pursuer consented to was the matter he brought before the court, the setting of times to the contact awarded in the decree.

 

A fall back submission by Ms Scott was that the craves by the defender and the child did not form part of the same cause of action as the crave for the pursuer: the object of his minute was to set times for the exercise of the contact order already granted, the object of the opposing craves went well beyond that. She referred to The Tatry (E.J.C.) [1999] QB 515, in which cause of action is discussed in the context of liability for damage to cargo.

 

Ms Scott went on to submit that a court must exercise particular care in assuming an exceptional jurisdiction. It must decide positively that it is in the best interests of the child to do so. The pursuer brought a minor practical matter to court; the matters raised by the other parties were such that the five day proof fixed might not be enough. The pursuer had no pleadings in these matters and it might not be possible for the proof to proceed anyway. The link with the sheriff who heard the original proof was gone. The child had no real connection here any longer; she had become a party only since the last proof. It was not easy for her or the defender to attend this court and there were likely to be witnesses from the school community and police in Wiltshire. The court would have to apply the law of the child's habitual residence (section 14(3) Children (Scotland) Act 1995). While a Part I order under the Family Law Act 1986 could be enforced in England, an order depriving a party of parental rights, which includes taking away the right to act as legal representative, was not a Part I order.

 

In support of a sist, M v M showed a pragmatic approach and the present case met the criteria laid down in B v B.

 

With regard to the crave relating to the change of name, Ms Scott submitted that it was not competent for a court to re-name a child; in M v C, the court made a specific issue order against one of the parties.

 

In my view, having considered the submissions, the most significant point to note is that the Council Regulation (Brussels II Bis) re-enforces the habitual residence of the child as the basis for jurisdiction in matters of parental responsibility, with few exceptions, such as the issue of the child's name. Between the Member States of the European Union and between the territorial units within States with more than one system, jurisdiction generally pertains to the courts of the place where the child is habitually resident (Articles 8 and 66). I have already noted the three month retention of jurisdiction to modify a judgment, after a child's habitual residence has changed under Article 9. I note also that Article 15 allows a court which has jurisdiction to transfer a case to a court in another jurisdiction better placed to hear the case. Articles 9 and 15 have no application in this case. This case is largely concerned with prorogation of jurisdiction under Article 12.3.

 

I agree with Ms Scott that a court should be cautious about assuming jurisdiction where, under the general rule, it lies elsewhere and note that Article 12.3 requires robust conditions to be met. The first of these is that "the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State." As Ms Brabinder pointed out, a problem of interpretation arises where the conflict is between two systems in one Member State because the Article does not refer to a substantial connection with a territorial unit. One looks to Article 66 for assistance but, while it provides that reference in the Regulation to habitual residence in a Member State with two or more systems of law shall refer to habitual residence in a territorial unit and reference to the authority of the Member State shall refer to the authority of a territorial unit within the State, it does not say that reference to a substantial connection with a Member State shall refer to a substantial connection with a territorial unit within it.

 

In the present case, the child has a substantial connection with the United Kingdom whether she is living in England or Scotland. If that were sufficient for the purposes of Article 12.3, it would render the substantial connection requirement meaningless as between territorial units. Having regard to Article 66 as a whole, I believe that such an interpretation would be contrary to the intention of the Regulation. Accordingly, I proceed on the basis that what is required to satisfy Article 12.3 is a substantial connection with the territorial unit, in this case Scotland.

 

In considering that question, I take note of all that was said by counsel and have come to the conclusion that the child no longer has a substantial connection with Scotland. She and her family are resident in England. She attends school in England. I do not regard the present proceedings or the fact that her solicitor and the psychologist whom she has instructed as establishing a substantial connection.

 

With regard to acceptance by the parties of the jurisdiction of the Scottish courts, it is unfortunate that the minute to vary lodged by the pursuer in March 2005 makes no averments about jurisdiction and that the issue was not raised until recently, ironically by the pusrsuer himself. Evidently, the pursuer accepted the jurisdiction of this court in lodging the minute. I note that it was not much more than executive in that it sought specific times to be set for contact already granted. In due course, answers to the minute to vary were lodged by the defender and the child. Most unusually, in my experience, the answers themselves contain craves. The craves are to vary the contact order by reducing contact to nil. The usual procedure for a party seeking to vary an order after final decree is to lodge a minute (Ordinary Cause Rules 1993. 33.65). While no point was taken about the procedure adopted, the question arises as to whether the pursuer must be deemed to have accepted the jurisdiction of the court in respect the craves introduced by the other parties.

 

The Regulation refers to acceptance by all parties "at the time the court is seised" (Article 12.3 (b)). Article 16 states that a court shall be deemed to be seised either when the document instituting the proceedings or an equivalent document is lodged with the court or if a document has to served before being lodged, at the time it is received by the authority responsible for service. There can be no doubt that the court was seised when the pursuer lodged his minute. He maintains that the seising was only for the purpose of the precise variation he sought. The position of the defender and the child is that the court was seised in relation to the welfare of the child and the defender must be deemed to have accepted the jurisdiction of the court in that whole area, the court having power to make any order it saw fit.

 

In my view, the craves of the defender and the child, each of which would normally be introduced by the lodging of a separate minute, initiate separate proceedings from those commenced by the pursuer. The acceptance by a party of the jurisdiction of the court must be deemed to be acceptance of the competency of the court to make any order it sees fit but that is not the same accepting its jurisdiction to deal with any matter, however distantly related, other parties decide to initiate. Accordingly, I have come to the view that the pursuer accepted the jurisdiction of the court in an unequivocal manner only in relation to his own minute. He has not accepted jurisdiction in respect of the craves in the answers nor a fortiori in respect of the craves in minutes of amendment.

 

The question of what is in the best interests of the child is extremely important but falls to be considered only if the first two conditions in Article 12.3 have been met. I have decided that they have not and do not require to reach a view on her best interests for the purposes of this decision. However, I am not satisfied that it is in her best interests for proceedings to continue in this court. I appreciate that the child herself is anxious for matters to reach a speedy conclusion and that a proof has been allowed here but the state of the pleadings is such that it seems unlikely that it could proceed. The pursuer has not lodged answers to the minutes of amendments and the averments in the child's minute of amendment containing the crave for removal of the pursuer's parental rights narrate only two incidents and may well require to be expanded if a proper foundation is to be laid for such a momentous crave. I have the impression that any proof is likely to be bitterly contested and take some time.

 

The cases of M v M and B v B are not directly in point as they were concerned with sisting procedure under section 14(2) of the 1986 Act so that proceedings could take place in a more appropriate jurisdiction. In these cases, however, the Scottish courts had jurisdiction and the issue was one of forum non conveniens. The starting point of the present case is that the Scottish courts do not have jurisdiction because the child is no longer habitually resident in Scotland. Jurisdiction could be acquired only by way of prorogation and, for the reasons stated, I do not consider that prorogation has taken place, except perhaps in relation to the minute to vary which the pursuer no longer insists on.

 

 

Finally, as parties agreed, the crave for a specific issue order relating to the child's name is not governed by the Council Regulation but may remain under the jurisdiction of this court by virtue of section 15(2) of the 1980 Act. The crave is for a specific issue order in terms of section 11(2)(e) of the Children (Scotland) Act 1995 that the child be known by a different surname.

 

 

In my view, this crave is quite different from that in the case of M v C, where one party obtained an order preventing the other from giving the child a particular surname. The order here is not directed at anyone in particular. It is unclear what the effect of such an order would be but I am of the view that it is one which the court cannot competently make, as the naming of a child is a matter for those holding parental responsibility. For that reason, I refuse to allow this amendment

 

As to disposal, therefore, I have refused the amendments and, there being no basis for a sist, have dismissed the minute to vary and answers thereto. Motions for interim orders, of course, fall.

 

On joint motion, I have certified the proceedings as suitable for the employment of junior and continued the cause for a hearing on expenses.