Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNFERMLINE (F72/07)

MB (Pursuer)

against

CB (Defender)

Act Mr Spence, Solicitor.

Alt Ms Malcolm, Advocate instructed by Balfour & Manson, Solicitors.

Dunfermline 18 August 2008

The Sheriff, having resumed consideration of the cause Repels, the Defender's first and second pleas in law; appoints the parties to be further heard on the Minute to Vary and Answers thereto on a date to be afterwards fixed; meantime allows parties to adjust the Minute and Answers until 22 October 2008; appoints the cause to a procedural hearing on 29 October 2008 to regulate further procedure; ordains the minuter to lodge a record not later than 27 October 2008; meantime reserves the question of the expenses of the cause to date.

List of Authorities

Council Regulations (EC) 2201/2003 ("The 2003 Council Regulation")

European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgements) (Scotland) Regulations 2005, SSI 2005/42 ("The 2005 SI")

Family Law Act 1986 (as amended) ("The 1986 Act")

Children (Scotland) Act 1995 ("The 1995 Act")

S v D 2007 SLT (Sh Ct) 37

Edwards and Griffiths "Family Law" 2^nd edition

Butterworth's Scottish Family Law Service

Norrie "Parent and Child"

Dickson v Dickson 1990 SCLR 692

B v B 1998 Fam LR 70

L v L 200SLT (Sh Ct) 12

(1)   This hearing on 1 August 2007 related to a Minute to Vary brought by the pursuer in relation to an interlocutor of 3 October 2007 which followed on a joint minute of parties agreeing, amongst other things, residence of the parties' son, DB and contact to him. The issues to be decided at the hearing were contained in the defender's pleas-in-law 1, 2 and 3. In essence the argument was that this court does not have jurisdiction. There was also an esto argument that if it did have jurisdiction the case should be sisted to allow proceedings presently raised in Bristol to be decided. That position appeared to modify somewhat by the end of the argument to the effect that the minute should be dismissed but the main action should be transferred to Bristol.

(2)   The terms of the Joint Minute which led to a settlement of the action and which are reflected in the interlocutor of 3 October 2007 are as follows:-

"The Sheriff, on Pursuer's motion and of consent, Opens the Record, Allows same to be amended in terms of the Pursuer's Minute of Amendment and the Defender's Answers thereto, Nos 13 and 15 of Process and, of new, Closes the Record; on Pursuer's motion and in respect of no objection, Allows Amended Record to be received at the the bar and form No 16 of Process; on joint motion, Discharges the diet of Proof fixed for today and Interpones authority of Court to the Joint Minute of Parties, now lodged at the bar and forming No 17 of Process and in terms thereof:-

1.      In respect of the Pursuer's and Defender's first craves Makes a Residence Order providing that the child DB, born 7^th January 2002 will reside with the Defender.

2.      In respect of the Pursuer's and the Defender's second craves Finds the Pursuer entitled to contact to the said child as follows-

(a)             residential contact with said child on a four weekly cycle commencing Saturday 2^nd November 2007 whereby the Pursuer will have contact with the said child in week one from Saturday at 10 a.m. until Sunday at 5.00 p.m. in Bristol and in week three from Saturday at 9 a.m. until Sunday at 1.30 p.m. in Dunfermline. In respect of contact in Bristol the handover in respect of said child will be in Bristol City Centre at a location nominated by the Pursuer. In respect of contact in Dunfermline the handover in respect of said child will be at Edinburgh Airport. The Defender will be responsible for delivering the said child to the Pursuer at Edinburgh Airport and collecting him from there. In respect of said contact in Bristol the same will commence from Friday no later than 7 p.m. in the event of the Pursuer being able to arrive at Bristol airport by 7 p.m. on that day if agreed by the parties. Contact in terms of said aforesaid cycle will be varied whereby it will resume on the second weekend after the periods of contact in terms of sub-clause (b) hereafter;

(b)                     residential contact to coincide with the said child's school holidays being one week at the February mid-term holiday, one week at the Easter holiday, one week at the May mid-term holiday, three weeks at the Summer holiday, one week at the October mid-term holiday and one week at the Christmas holiday. Without prejudice to the generality of the foregoing the periods of one week in each of the Easter and October holidays will coincide with the Pursuer's own school holidays in so far as possible. In respect of the Summer holiday the period of three weeks will be at the commencement of the Summer holiday in order to coincide so far as possible with the Pursuer's school holiday. In respect of the October mid-term holiday in 2007 the Pursuer will have residential contact on 11^th October 2007 from 3.00 p.m. until 20^th October 2007 at noon. In respect of the Christmas holiday said contact will be for the first week of said holiday in 2007 and for the second week in 2008 repeating on this cycle save the said child will be returned to the Defender on 8^th January when the Pursuer has contact for the second week of said holiday. The Defender will deliver the said child to the Pursuer at Edinburgh Airport at the commencement of said periods of residential contact and the Pursuer shall deliver the said child to the Defender at Bristol Airport at the end of said periods of residential contact. In addition the Pursuer will have non-residential contact with said child on such midweek days as the parties may agree from 3.15 p.m. until 6.30 p.m.; and

(c)  Each party will be responsible for their respective travel and accommodation costs to facilitate the foregoing arrangements for contact. The travel costs of said child i.e. his air fare will be shared equally between the parties.

3.      Finds that each party will have telephone contact with the said child when the said child is in the care of the other party between 6.45 p.m. and 7 p.m. daily when said child is in the care of the Defender and between 6 p.m. and 6.15 p.m. when said child is in the care of the Pursuer all so far as practicable. Each party undertakes to allow the said child to telephone the other party as and when the said child wishes to do so where practically possible. Each party undertakes to intimate to the other any change of address or telephone number. Each party undertakes to intimate forthwith to the other any medical emergency in respect of said child.

4.      Dismisses the Pursuer's third crave and 

5. In respect of the Pursuer's fifth crave and the Defender's thirds crave Finds no expenses due to or by either party."

(3)   Ms Malcolm opened her submission by reference to the 2003 Council Regulation and referred to Article 1, paragraph 1

"1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:

(a) divorce, legal separation or marriage annulment;

(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.

2. The matters referred to in paragraph 1(b) may, in particular, deal with:

(a) rights of custody and rights of access;

(b) guardianship, curatorship and similar institutions;"

That has been in force since 1 March 2005 by virtue of the 2005 SI and amended the 1986 Act by inserting Section 17A

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

Therefore the 1986 Act is subject to the 2003 Council Regulation and domestic legislation is subject to the 2003 Council Regulation which takes precedence.

Chapter II of the 2003 Council Regulation deals with jurisdiction

"Article 8

General jurisdiction

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12".

(4) In the United Kingdom where there are different legal systems these separate systems are brought within the ambit of the 2003 Council Regulation by Article 66

"Member States with two or more legal systems

With regard to a Member State in which two or more systems of law or sets of rules concerning matters governed by this Regulation apply in different territorial units:

(a) any reference to habitual residence in that Member State shall refer to habitual residence in a territorial unit;

(b) any reference to nationality, or in the case of the United Kingdom ' domicile', shall refer to the territorial unit designated by the law of that State;

(c) any reference to the authority of a Member State shall refer to the authority of a territorial unit within that State which is concerned;

(d) any reference to the rules of the requested Member State shall refer to the rules of the territorial unit in which jurisdiction, recognition or enforcement is invoked."

(5) Therefore the 2003 Council Regulation applies in a situation as between Scotland and England as they would between two member countries. Section 17A rules and supersedes Section 15.

That was the view taken in S v D where the parties and the child were all resident in England at the time of the raising of the several Minutes in the case when the Sheriff held that Section 17A, in effect, set aside domestic legislation and that the 2003 Council Regulation would apply in cases which were intra the UK.

(6) She referred to Edwards and Griffiths at paras 4-41 and 4-45 which she suggested was further authority for the proposition that the European Regulations took precedence over the 1986 Act. The proposition received further support in Scottish Family Law Service C602 and 603.

(7) The 1995 Act Section 14(5) was inserted by the 2005 SI. As a result any Section 11 application is subject to the 2003 Council Regulation and any question of jurisdiction is determined by these Regulations. An application to vary an existing order is no different to a new section 11 claim. This case has proceeded as a Minute to Vary in this court as that is a procedural requirement but because the child is no longer resident here there is a jurisdiction issue.

Article 9 reads

"Continuing jurisdiction of the child's former habitual residence

1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence.

2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction."

It is over three months since the child moved to England.

Article 12(3) reads

"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 courts 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."

Sub-section (a) is accepted regarding this child but there has been no agreement to prorogate this jurisdiction.

(8) When was the court seised of this issue?

Article 16 states,

"Seising of a Court

1. A court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court."

In this case the court was seised when the Minute to Vary was presented on 10 June 2008. That was the approach taken in S v D (Para 41K).

(9) There is no doubt the child was not resident in Scotland in June 2008 and had been in Bristol for about 8 months.

The meaning of "habitual residence" is dealt with in Norrie at para11.21. for all practical purposes it is the same as ordinary residence. It is a question of fact to be decided by reference to all the circumstances of the particular case. In the case of a child it will be the residence chosen for him by his parents.

In Dickson v Dickson, Lord Hope said at page 703B, "It is enough to say that in our opinion a habitual residence is one which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time."

Here, there is an acceptance of residence in the Joint Minute which was entered in anticipation of the move to Bristol by the father. The pursuer has therefore consented to a change in habitual residence. The child lives in Bristol with his father and the defender intends to make a permanent home there. The child is at school there; health care is arranged there. At 10 June 2008 the child was not resident in Scotland. Therefore this court does not have jurisdiction.

(10) If I was against her on that proposition her fall back position was that I should transfer the cause to the Family Court in Bristol. That was competent in terms of the 1986 Act and was appropriate here.

In B v B Lord MacLean considered the factors which should be taken into account when deciding a case on the basis of forum non conveniens. While the welfare of a child was an important factor it was not the paramount consideration and was relevant only in determining the appropriate forum. Other relevant factors included habitual residence at the time of the application, the location of witnesses, the cost, the likely length and thoroughness of any court proceedings and any other factors which might seem relevant to the court.

The factors to be considered here were what was currently in the child's best interests and whether changing the status quo was appropriate. His day-to-day life was in England, school, healthcare etc. All the witnesses in these areas would come from England. If the hearing was in Scotland the defender would have to arrange child care while he attended at court. There was a significant cost implication. There were proceeding commenced in Bristol to vary contact. The pursuer could raise the issues here in that case and seek such orders as she wishes. It was accepted that there was a lot of enquiry carried out in the original action. There was a court report and two psychologists but that was all some time ago and was based on circumstances then. If it was relevant now there would have to be a fresh enquiry in the changed circumstances.

(11) There is a suggestion in the pursuer's pleadings that there was a degree of misrepresentation by the defender to induce the pursuer to agree the terms of the joint minute. That turns on the fact that the defender was in a relationship with a third party at the time but it did not work out. The view formed in reports was not in any way conditional on him being in a relationship. All reports in the case can be made available to the court in Bristol. There was no evidence led.

I should therefore sist the minute or transfer the case to Bristol.

(12) In response Mr Spence referred to his written note of argument and said he did not intend to go over it in detail. His position was that Section 15(2) of the 1986 Act remained in effect. The 2005 SI makes a number of specific amendments to sections of the 1986 Act but none are to Section 15. There were in fact limited alterations made to the 1986 Act by the 2005 SI. If Section 15(2) was to be amended then it would have been amended in a way in which the section itself would have been amended. It was not. If it was intended to amend to cover, for example, a case of a move to a non-contracting state there would have been specific amendment yet there was none.

(13) In S v D the sheriff "presumes" rather than "explains" why he feels the 2003 Council Regulation apply. The decision is not in any event binding.

Article 9 applies and makes provision for continuing jurisdiction.

(14) As far as the fall-back argument is concerned, in the original action there were a number of contested Child Welfare Hearings. It was the circumstances narrated there at the time of the "agreement" that now give rise to the suggestion that there has been misrepresentation which led the pursuer to enter the agreement. Therefore this court needs to retain the case to look at these points. The former solicitors may have to give evidence. What has happened in this court in previous hearings is important.

The cases referred to by the defender tended to have both parties resident outwith Scotland. If the case was in Bristol there would be significant cost to the pursuer.

(15) If the decision was that the case should be heard in Bristol then the matter should be transferred there rather than simply sisted. A transfer was competent in terms of Section 14 of the 1986 Act and Article 15 of the 2003 Council Regulation.

(16) The parties agreed that expenses should be reserved meantime.

DECISION

(17) The only case law which the parties presented (and which I could find) dealing with the 2003 Council Regulation and intra-UK matters appears to be S v D. That case did however provoke an article by Professor Gerry Maher QC, a member of the Scottish Law Commission at 2007 SLT 117. In that article he analyses Sheriff McPartlin's decision and why he thinks that the wrong approach has been taken.

The first point to make is that the 2005 SI makes a number of specific amendments to the 1986 Act but none at all to Section 15. In the context of this argument and in view of some of the references I make later I regard that as significant.

The second point is that if this was a new action there would be no doubt whatsoever that, on the basis of habitual residence of the child, it would have to be raised in Bristol. However, this is a minute in an action which was quite properly and competently in this court. It is not a new action but simply seeking to vary an order made in this court. That begs the question (if it is relevant) of when the court was "seised", by the raising of the original action or by this minute.

(18) The preamble to Article 66 states "With regard to a Member State in which two or more systems of law or sets of rules concerning matters governed by this Regulation apply in different territorial units." Reading S v D it is clear that it has been taken as read that the Regulation extends to cases where the only issue is between different legal systems within the UK. It is not clear if or to what extent the court considered the issue of matters governed by the Regulation.

The 2005 SI makes only two changes to the 1986 Act, one adding a reference to Article 15 to Section 14 and the other introducing a new Section 17A. That says quite simply "The provisions of this Chapter are subject to Sections 2 and 3 of Chapter II of the Council Regulation." The expression used is "subject to" not "governed by" or some such similar phrase. In his article, Professor Maher gives various examples of the use of "subject to" in UK legislation.

(19) Article 8 states that a court of a member state will have jurisdiction for matters of parental responsibility over a child who is habitually resident in that member state. Article 9 states that when a child moves from one member state to another and acquires a new habitual residence the court in the former habitual residence shall retain jurisdiction for three months to modify a judgement on "access rights".

"Article 66

Member States with two or more legal systems

With regard to a Member State in which two or more systems of law or sets of rules concerning matters governed by this Regulation apply in different territorial units:

(a) any reference to habitual residence in that Member State shall refer to habitual residence in a territorial unit;

(b) any reference to nationality, or in the case of the United Kingdom ' domicile', shall refer to the territorial unit designated by the law of that State"

;

The defender's proposition is that the effect of Article 66 is that the 2003 Council Regulation supersede UK law, whether in England or Scotland, which deals with a purely UK matter (The 1986 Act). The issue is whether the 2003 Council Regulation applies to cases which are purely internal to the UK.

The defender's argument seems to be that the 2003 Council Regulation gives certain grounds of jurisdiction to territorial units within a member state. They must therefore apply to all issues of jurisdiction between territorial units of a member state in actions to which the Regulation would apply. That cannot be correct. The more likely interpretation is that it applies only where there is a question of jurisdiction between member states. Then, where there are territorial units in one of the member states, the appropriate territorial unit will be the forum in the member state concerned.

The 2003 Council Regulation does not define "access rights" but does contain a definition of "rights of access" which includes the right to take a child to a place other than his or her habitual residence for a limited period of time. There is no definition of "habitual residence" but I agree that a common sense interpretation of the phrase should be applied. However the different use of words as illustrated here demonstrates that the Regulation is not perfectly drafted.

(20) The defender referred to a number of cases and I believe that they can be distinguished. In B v B the mother was American; the children were born in the USA; the father had removed the children to Denmark. There were orders of a court in New York. The onus was on mother to satisfy the court that New York was the more appropriate forum and she failed to do so. Therefore a motion to sist the Scottish proceedings failed. In L v L by the time that the minute was raised the pursuer had lived with the child in London for 9 years and the defender was also by that time living in London. It was hardly surprising that the view was taken that the factors pointed towards English jurisdiction and the Scottish action was sisted. That was against a background that there had been previous minutes entertained by the Scottish court since the action settled in April 1991.

Finally, in S v D following a judgement on 23 November 2004 the proceedings to vary were raised in Edinburgh. Mother and child had moved to England almost immediately and by the time the minute was raised, father was also resident there. Applying the factors in B v B and leaving aside the argument of the Sheriff re the 2003 Council Regulation one can see why the English courts were thought to be the appropriate forum.

(21) I have accordingly reached the conclusion that the provisions of Section 15 of the 1986 Act apply in this case and this court has jurisdiction. Leaving aside any argument about the need for enabling legislation to bring into force any EC Regulation, the 2005 SI makes specific changes to various pieces of legislation. Had it been the intention to change Section 15 I have no doubt that such a change would have been made. The Explanatory Note attached to the 2005 SI state "The amendments to the Family Law Act 1986 (Regulation4) make clear that the court can sist an action, or a part thereof, when transferring jurisdiction under Article 15 of the new Council Regulation. The amendments make clear that the provisions of the new Council Regulation must be considered before domestic jurisdiction. The amendments also substitute the relevant references to the new Council Regulation."

The power to sist when transferring implies that there must be an existing action and that circumstances have changed whereby the child's habitual residence has moved. It is a discretionary power. It does not say that it is incompetent for the original court to retain jurisdiction. The requirement to consider the Council Regulation before domestic jurisdiction must apply to new cases. However it is less clear if it was intended to apply where there had already been a case raised in a court and a minute to vary follows. There is an inconsistency in granting a discretion on the one hand and arguing that only one court can have jurisdiction on the other. In my view that means that where there is an existing action, as here, the terms of Section 15(2) of the 1986 Act continues to apply but the court can exercise discretion in any case and transfer.

In his book, "Family Law in Scotland" Professor Thomson states that the Hague Convention is concerned with the wrongful removal of a child from one contracting state to another. It does not apply to the removal of a child from one territorial unit of a member state to another. In other words it does not apply between Scotland and England. It is clear from the preamble to the 2003 Council Regulation that the principles of the Hague Convention played some part in the drafting process. That strengthens my view that the 2003 Council Regulation apply as between member states and not between territorial units of a member state.

(22) The Stair Memorial Encyclopaedia refers to what it terms "the Brussels regime" and describes the situation under "Brussels II" which was the forerunner to the 2003 Council Regulation which repeated much of the earlier regulation. The authors describe four scenarios, the Brussels Regime which applies between member states of the European Union except Denmark, the Hague Regime which operates between countries which are party to it, intra-UK cases governed by the Family Law Act 1986 and cases involving a country not bound by either Brussels or The Hague. In other words there is a distinction between intra-UK cases and cases involving another member state. The authors further concede that there may be the possibility of cases having concurrent jurisdiction but in such cases the courts must defer to the first court seized of the case except where urgent protective measures are required.

Act of Sederunt (Jurisdiction, Recognition and Enforcement of Judgements in Matrimonial Matters and Matters of Parental Responsibility Rules) 2006 came into force on 1 August 2006 and makes rules in respect of civil cases involving matrimonial matters and matters of parental responsibility to which the 2003 Council Regulation applies. This Act is important because it defines a "foreign court" as a court in a member state other than the United Kingdom. In other words there is no application to an intra-UK case.

That further reinforces my view that in an intra-UK case section 15 still applies. It would seem illogical for that view to be taken in that Act of Sederunt and a different view taken over the 2003 Council Regulation in relation to the 1986 Act or any subordinate legislation thereunder.

(23) Turning to the question of whether or not to transfer the case to Bristol, the arguments are fairly evenly balanced. The pursuer says that evidence will need to be led to back her suggestion that she was in some way misled. That may involve her former solicitor giving evidence. There were two psychologists involved in the earlier proceedings and it could be envisaged that one or both would be needed again. There was a court reporter and he may have to become involved again.

Balanced against that the child lives in Bristol with the defender; he goes to school there; his medical needs are taken care of there. If I understand matters correctly medical/psychological issues will figure quite highly in any subsequent proof. All evidence regarding the current situation is in Bristol.

Either side will be disadvantaged if the case goes ahead in the chosen forum of the other. There will be cost implications.

I must therefore consider what is best for the child. It is only a matter of months since the action settled by the entering of a joint minute. It is a concern that this minute appears so soon and that the defender has already raised an action in Bristol to vary contact especially when I was told at the conclusion of the hearing that contact per the order was progressing. What is said in the minute and answers about the child is concerning. This court is the only one which can decide if the defender did or said anything in the action which was designed to mislead. There has been much time, effort and money expended in the action here. There has been professional involvement. There was a court report by an experienced family practitioner. The evidence of these people will be invaluable in helping the court reach a view on the minuter's present averments and the answers thereto.

I readily accept that evidence will need to be adduced from the Bristol area and that may cause inconvenience and expense. The same argument would apply if the matter was transferred and numerous witnesses required to travel to Bristol from Scotland. It is important for the child that the argument is heard soon and given this courts existing knowledge of the case and the stage which we have reached I believe that can best be achieved here.

(24) I accordingly reject the motion to dismiss or to sist this action pending the outcome of the Bristol action. I also will not, at this point, transfer the case although that is something which can be kept under revue depending on the outcome here. I have allowed parties a hearing and a period to adjust the minute and answers and appointed a procedural hearing to fix dates. I have also reserved the question of expenses. If necessary any motion regarding expenses can be presented to be heard at the procedural hearing.