Scottish Sheriff Court Decisions

2014SCDUM29

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

COURT Ref. No.: F 37/05   

                 NOTE (No. 2)

            by

SHERIFF GEORGE JAMIESON

            in the family action F37/05

G. O. T.                                                                 PURSUER

 against

K. J. K.                                                      DEFENDER

                                                                 
                                                            ____________________________________________  

Dumfries         5 February 2013          

The sheriff, having heard evidence and submissions on the question of jurisdiction anent the pursuer’s application for a residence order in respect of the children and having pronounced an interlocutor on that date inter alia finding in fact and law that section 41(3) of the Family Law Act 1986 did not apply in this case , and that this court might entertain the pursuer’s application for a residence order in respect of the children by virtue of section 8 of the Family Law Act 1986 , and being required by OCR 1993, rule 12.2 (3) do so , now appends the following Note setting out the reasons for that decision.

Sheriff George Jamieson

NOTE

Background

• [1]As explained in my previous Note, the pursuer is the registered birth father and the defender the mother of the children. Both parties have parental responsibilities and rights in respect of the children. The parties are former cohabitants. They stopped living together in 2004. In 2005 the pursuer made application to this court for a contact order in respect of the children under section 11 of the Children (Scotland) Act 1995. The action has had a long and protracted history.
• [2]Various contact orders have been made along the way in favour of the pursuer. The pursuer alleges that of late the defender has not obtempered these orders. He has become frustrated that the defender has not been allowing him contact with the children. He has made application to this court for a residence order in respect of the children under section 11 of the Children (Scotland) Act 1995[1].

   

• [3]The case called before me for a debate on jurisdiction on 6 December 2012. For the reasons in my previous Note, I pronounced an interlocutor finding that this court might exercise jurisdiction under Scots law in respect of the pursuer’s application for a residence order, provided section 41(3) of the Family Law Act 1986 did not apply to this case. I repeat the relevant statutory provisions for the sake of convenience in this Note.

   

• [4]Sections 41(1) and (3) are in the following terms:

   

  Habitual residence after removal without consent, etc.

   

  (1) Where a child who—

  (a) has not attained the age of sixteen, and

  (b) is habitually resident in a part of the United Kingdom,

  becomes habitually resident outside that part of the United Kingdom in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise.

   

  (3) A child shall cease to be treated by virtue of subsection (1) above as habitually resident in a part of the United Kingdom if, during the period there mentioned—

  (a) ……. or

  (b) he becomes habitually resident outside that part of the United Kingdom with the agreement of the person or persons mentioned in subsection (2)(a) above…

   

   

• [5]This section shall require some further analysis by me in the light of the relevant circumstances in this case and the submissions made to me by the parties’ agents at the proof on 31 January 2013.
• [6]But I think it important first of all again to reproduce the Law Commissions’ “Explanatory Note” to its draft Clause 40, now section 41, so far as relating to sections 41(1) and 3 of the Family Law Act 1986.

   

  Clause 40

   

  This clause, which implements the recommendation in paragraph 4.18(2) of the Report, is designed to deter the unauthorised removal of a child from one jurisdiction to another for the purpose of delaying enforcement of a custody order or of initiating or reopening custody proceedings in a forum which the person removing the child thinks may be more favourable to him.

   

  The clause also provides for the possibility of a child not being returned at the end of a period of staying access. The general intention is that, despite a wrongful removal or retention, the courts of the part of the United Kingdom in which the child was habitually resident immediately before the removal or retention will retain jurisdiction for one year.

   

   Subsection (1)

   

  This subsection sets out the main principle embodied in the clause, i.e. that if a child under sixteen is removed from or retained outside the part of the United Kingdom in which he was previously habitually resident in consequence of circumstances as specified in subsection (2), he is to be treated for one year thereafter as if he were still habitually resident in that part of the United Kingdom. This provision is to the same effect as Articles 3 and 12 of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction.

   

  Subsection (3)

   

  This subsection covers two circumstances in which subsection (1) should become inapplicable within the one year period. In case (a) the child reaches the age of 16 during the course of the year. In case (b), the lack of authority for the removal or retention is remedied by the agreement (of all the persons entitled to determine where he is to reside) to his acquiring a new habitual residence- e.g. if one parent removes the child from Scotland to England without the consent of the other, but the other parent later agrees to the child remaining in England. Case (b) applies only where the removal or retention is not in contravention of a court order.

   

  Sequence of events

   

• [7]The children were both born in Scotland. They lived their whole lives in Scotland and had their whole family connections with Scotland until the defender removed them from Scotland on 27 June 2011. Since then they have resided continually in England and appear settled there.

   

• [8]There can be little room for doubt that the children were habitually resident in Scotland on 27 June 2011. If therefore they became habitually resident outside Scotland in consequence of circumstances of the kind specified in subsection (2) of section 41 of the 1986 Act then they “shall be treated as continuing to be habitually resident [in Scotland]for the period of one year beginning with the date on which those circumstances arise”: 1986 Act, section 41(1).

   

• [9]As explained in my previous Note, this one year period applied in this case and ran from 27 June 2011 (counted as the first day of the twelve month period) until 26 June 2012. As I held in previous Note that the pursuer’s application for a residence order was made no later than 14 June 2012, it followed this court had jurisdiction to entertain the pursuer’s application for a residence order in respect of the children- provided section 41(3) of the 1986 Act did not apply.

   

• [10]In other words did the pursuer agree during that period to the children living in England? To resolve this question I heard evidence at the proof on jurisdiction on 31 January 2013.

   

  The Evidence

• [11]I heard evidence from the pursuer and Mr B, court reporter. The defender elected not to attend the proof and was excused from doing so on the previous motion of her agent. I directed evidence to be recorded digitally in the absence of a shorthand writer.

   

  Pursuer

• [12]The pursuer said he was seeking a residence order because he was concerned about the children’s welfare while living with the defender.

   

• [13]He said he met with Mr B for over two hours in January 2012. He told Mr B the children had left in June 2011. Social services had been involved. The children had been placed on a supervision requirement by the children’s hearing.

   

• [14]He said he had attended meetings of the children’s hearing and had expressed to them his opposition to the children being taken to England.

   

• [15]He was referred to 5/17 of process, a draft minute of amendment seeking interdict of the defender from removing the children from the court’s jurisdiction and a residence order in favour of the pursuer in respect of the children, prepared by his previous solicitor.

   

• [16]He was not sure if that was the document prepared by her but explained that she had advised him he could not proceed with the interdict application because of the supervision requirement.

   

• [17]He confirmed that item 5/22 of process was a copy of his letter of complaint to social services regarding their involvement in the case.

   

• [18]He said she had advised him clients were not represented by solicitors at a children’s hearing and he had attended on his own.

   

• [19]He said that she had not advised him he could appeal to the sheriff against the making of the supervision requirement.

   

• [20]He said that after the children were taken from Dumfries he hoped social services would realise they had made a mistake and would return the children to Dumfries “where all their family are”.

   

• [21]He said he had not agreed to the children being removed and had not just decided to accept the position after they had left.

   

• [22]Thereafter he was cross-examined by the defender’s agent.

   

• [23]He confirmed he was aware of the children being removed from Scotland on 21 June 2011.

   

• [24]He agreed he had been present when the children left, though he did not accept he helped fill the removal van.

   

• [25]The terms of his former solicitor’s email referred to in my previous Note were put to him. He said he could not remember this email.

   

• [26]He said, with reference to not wanting to become involved in further proceedings, he was told he could do nothing about the removal because of the supervision requirement. He said if he had known about the right to appeal to the sheriff against the supervision requirement he would have done so. He said the children had never told him they wanted to move back to Scotland or remain in England.

   

• [27]It was put to him he would never have applied for residence had contact operated successfully. He was unable to answer that question because:“Ah cannae answer whit’s no’ happenit”[2].

   

• [28]In re-examination, he confirmed he had not helped fill the defender’s removal van and his former solicitor had not told him he could appeal the supervision requirement to the sheriff.

  Mr B

   

• [29]Mr B adopted the terms of his affidavit dated 30 January 2013 as his evidence in chief.

   

• [30]He explains he interviewed the pursuer on 16 January 2012. As part of that interview, he discussed with the pursuer the children’s move during summer 2011.
• [31]The crucial passage in his report contained the views expressed to him by the pursuer: “the contact arrangements would require to alter. He wished to ensure that his relationship with the children continued. He did not seek to prevent Miss K moving. He did however seek to exercise residential contact during holiday periods.”

   

• [32]He had reviewed his notes of his interview with the pursuer. These made plain the pursuer had referred Mr B to the involvement of the children’s hearing. Mr B’s recollection was the pursuer‘s view was “he had no option but to accept a move would take place and co-operate with Social Work regarding contact.”

   

• [33]Mr B’s impression was the pursuer “simply felt he had no opportunity or ability to prevent any move”; he had not “positively agreed to a move”; “indeed he was displeased at the move”. He concluded “there was an air of resignation in his comments and views as opposed to any suggestion of consent, approval or agreement to what was happening.”

   

• [34]In accordance with section 11 of the Matrimonial Proceedings Act 1958, I afforded to both agents an opportunity to examine or cross-examine Mr B on his evidence.

   

• [35]The defender’s agent declined the opportunity to ask questions of Mr B.

   

• [36]The pursuer’s agent asked him only to comment on the concluding statement in his affidavit. He confirmed that by the time he met with the pursuer in January 2012, the children had already moved. He was of the view the pursuer had thought there had been nothing he could have done to prevent the children’s move. He did not form the impression that the pursuer had subsequently acquiesced in their removal.

   

  Submissions

   

• [37]The pursuer’s agent submitted section 41(3) was limited to agreement to removal within the one year period, in the sense of positive agreement. She submitted there was no evidence to show such agreement. In the event the subsection extended to “subsequent acquiescence”, she submitted the evidence did not demonstrate that either.

   

• [38]The defender’s agent submitted section 41(3) required positive agreement. He said this was evidenced by the pursuer’s attempts to get contact and the pursuer “would have been happy with contact rather than residence”. He submitted this was not speculative. The pursuer had applied for a residence order only after his contact orders had failed.

   

• [39]Finally, he submitted that the pursuer had acquiesced in the children’s removal because “there was nothing to suggest the children were not happy there”.

   

  Discussion

   

• [40]The purpose of hearing evidence on 31 January 2013 was to allow the court to determine if section 41(3) applied to this case. On the question of whether the word “agreement” as used in that subsection means what I have previously termed “positive consent” as opposed to “subsequent acquiescence”, I am of the view it applies to either of these situations.

   

• [41]I take that view because the Law Commissions’ Report makes it plain the subsection is based on provisions of the 1980 Hague Child Abduction Convention. The subsection uses “agreement”, not “consent”, and in my view such agreement may be evidenced by either the “consent” or “subsequent acquiescence” referred to in article 13(a) of the Convention.

   

• [42]It is somewhat surprising to me the defender’s agent argued for the narrower interpretation, and that he did not seek to analyse the evidence with regard to those concepts.

   

• [43]He did not refer me to any case law under article 13(a) of the Convention, which might have been of assistance to me in determining these issues.

   

• [44]In my opinion, concepts such as “agreement”, “consent” and “subsequent acquiescence” are largely factual in nature. However, it is plain to me that some of his submissions were irrelevant to the determination of these issues.

   

• [45]His first point was his argument - put to the pursuer in cross-examination- the pursuer would have not applied for a residence order, had he got contact in terms of the contact orders made by this court after 27 June 2011.

   

• [46]According to him, this was not a speculative question. In my opinion it was precisely that. I agree with the pursuer he cannot answer on the basis of something that did not occur.

   

• [47]Indeed it seems perverse to me to suggest that a person denied contact under a contact order can be said to acquiesce in a child’s removal to a different jurisdiction. If the pursuer had obtained contact in terms of the court orders made after the children’s removal, contact had operated satisfactorily in terms of those orders, and he had settled for that, then this might have suggested the pursuer’s acquiescence to the children’s new living arrangements being in England.

   

• [48]However, it appears as a matter of admission by the defender in Answer 5 of the Closed Record dated 4 December 2012 that she has never obtempered any of these orders.
• [49]She gives reasons for doing so partly based on the children’s wishes, but nowhere does she address her responsibilities to obey court orders for contact as set out in Cosh v Cosh 1979 SLT (N) 72, Blance v Blance 1978 SLT 74 and Brannigan v Brannigan 1979 SLT (N) 73.

   

• [50]Secondly, on the question of the pursuer’s agreement under section 41(3), it is not relevant what the children’s wishes are. The sole question under that subsection is whether the pursuer agreed to the children’s removal within the one year period: not whether the children did so. The children’s wishes are an aspect of their welfare, to be determined by the court exercising jurisdiction. They are not relevant in determining the question of jurisdiction.

   

• [51]I now consider the further issues referred to in cross-examination, albeit he did not refer to these in his submissions.

   

• [52]Apart from the pursuer’s comments to Mr B in January 2012, and the “speculative question” referred to above, the defender’s agent seemed to regard as important to a section 41(3) agreement in this case: (1) the pursuer’s failure to appeal the supervision requirement to the sheriff; and (2) the email dated 25 August 2011.

   

• [53]He did not cite the author to give evidence, so I do not have the benefit of whether she advised the pursuer he had such a right of appeal.

   

• [54]The pursuer said he was unaware of any such right and would have exercised it had he known about it. Given the pursuer’s strength of feeling about the children remaining in Scotland, I am satisfied that would have been his position. He cannot acquiesce if he did not know of any such right of appeal.

   

• [55]The email refers to the pursuer not wanting to become embroiled in “further court proceedings regarding the issue of contact, particularly as he may well have to instruct agents to raise proceedings in England”.

   

• [56]Again as the defender’s agent did not cite her to give evidence, I do not have the benefit of knowing what was meant by this email or the context in which it was written. I do not know in particular if she had advised the pursuer about section 41 of the Family Law Act 1986 and the retention of Scottish jurisdiction for one year after the removal. In the event, the pursuer instructed a new solicitor. Contact orders were made in his favour by this court both within and after the one year period on 24 November 2011, 8 March 2012, 19 July 2012, without jurisdictional objection by the defender.

   

• [57]Thus despite the terms of her email, the pursuer did seek further contact orders and he did not do so in England. Apparently neither he nor the defender considered this court lacked jurisdiction to make those orders. The issue of jurisdiction was raised by the defender only after the pursuer, denied contact in terms of these orders, made application to this court for a residence order.

   

• [58]Turning to Mr B’s evidence, it is now abundantly plain from that evidence he was not recording the pursuer’s subsequent consent or acquiescence to the children’s removal in his report. He was explaining the pursuer’s position at the time of the children’s removal.

   

• [59]For the reasons given in my previous Note, the pursuer was powerless to prevent their removal by interdict for the supervision requirement would take precedence over any court order under section 11 of the Children (Scotland) Act 1995.

   

• [60]The pursuer was unable to acquiesce in a situation over which he had no control. His letter of complaint to social services at 5/22 of process shows he was understandably happy the children were not living with the defender’s then husband, a convicted sex offender, but that he remained concerned in all the circumstances the defender had been allowed to take the children to Somerset.

   

• [61]I fully agree with Mr B’s assessment that the pursuer approached the children’s removal with an “air of resignation”. I gained the same impression when hearing the pursuer give evidence on this point. It follows that I also agree with him the pursuer did not agree to the children being removed.
• [62]Looking at the evidence as a whole I am not satisfied section 41(3) has been proved on the balance of probabilities to apply to this case. The pursuer might have acquiesced in the children’s removal if contact had ever operated successfully in terms of the court’s orders after that removal and he had been satisfied as to the satisfactory nature of their living arrangements there, but on the contrary, since then he has remained concerned the children should not in their own best interests reside there with the defender, he has protested social services involvement in having the children removed there, he has been denied contact in terms of the relevant court orders, and, on a proper understanding of Mr B’s report he did not indicate subsequent acquiescence to the children living in England in January 2012.

   

• [63]It follows from this finding that on the application of sections 8, 9 and 41 of the Family Law Act 1986 the children were regarded as habitually resident in the Sheriffdom on the date the pursuer applied for his residence order and this court has jurisdiction to entertain that application.

   

  Postscript

• [64]I am grateful to the reporter for undertaking the report in this case and his evidence by affidavit and in court. This was most helpful in resolving the issue of subsequent acquiescence in terms of section 41 of the Family Law Act 1986.

NB This Judgment is edited and is reported only on the section 41 point.