Scottish Sheriff Court Decisions

2015SCBAN57

SHERIFFDOM OF GRAMPIAN, HIGHLANDS AND ISLANDS AT BANFF

Interlocutor and Note

By

Sheriff Philip Mann

In Causa

KT, Pursuer

V

PT, Defender

Banff               27 August 2015                       Sheriff Mann

Act:    Personally present with Daley

Alt:     Personally present

The Sheriff, having heard parties, ex proprio motu Ordains the pursuer to return the children P T born 18^th January 2002, R T born 22^nd January 2006, N T born 27^th May 2011 and N T born 27^th May 2011 to the United Kingdom within 7 days from today’s date; further, prorogates the time for lodging defences by 14 days from today’s date and Ordains the defender to lodge defences and appropriate craves in terms of section 11 of the Children (Scotland) Act 1995 within that period; Assigns 25 September 2015 at 2.15 pm within the Sheriff Court House, Low Street, Banff as a continued child welfare hearing, the Sheriff Clerk to arrange for a translator to be in attendance for the defender at the hearing; Directs the Sheriff Clerk to provide the pursuer with a copy of the defender’s notice of intention to defend and attached “claim”; Refuses the pursuer’s motion made at the bar for leave to appeal this interlocutor. 

Sheriff

Note

1.         This is an action of Divorce raised by the wife on the grounds of unreasonable behaviour.  There are four children of the marriage under the age of sixteen.  The husband has lodged a notice of intention to defend in which he indicates that he seeks an order in terms of section 11 of the Children (Scotland) Act 1995 for contact with the children.

2.         Today’s hearing was a child welfare hearing fixed by the sheriff clerk in terms of rule 33.22A(1)(b) of the ordinary cause rules.

3.         The pursuer was represented by Mrs Daley, solicitor.  The defender appeared personally with the aid of an interpreter.

4.         Mrs Daley advised that she had not seen any defences, although the time for lodging defences had passed.  Neither had she seen a copy of the notice of intention to defend.  This was, perhaps, not surprising given that the defender was not legally represented.  As a result, said Mrs Daley, neither she nor her client knew what the defender was seeking as regards the children and thus they had had no opportunity to prepare for this hearing.  I advised Mrs Daley of the terms of the notice of intention to defend from which it was clear that the defender was seeking an order for contact.  I took the view that the pursuer had not been disadvantaged, it being an easy matter for Mrs Daley to instantly clarify her client’s attitude to contact.

5.         Mrs Daley questioned whether or not the court had jurisdiction to deal with a section 11 order in respect of the children.  Jurisdiction was not established unless the children were habitually resident within the territorial jurisdiction of the court.  The children had been so resident but they were currently living in Poland with their maternal grandmother.  They had spent the school summer holidays there as had been the practice for many years.  Mrs Daley advised that the pursuer had given up her local authority tenancy in Banff and intended to fly the very next day to Poland where she would pick up the children and then move with them to Germany where she had arranged to stay with relatives.  It was her intention that she and the children would permanently relocate to Germany.  The children had been enrolled to start school in Germany on 2 September 2015.  Mrs Daley submitted that in these circumstances the children were now habitually resident in Poland and that the court accordingly had no jurisdiction to entertain the defender’s claim for a section 11 order.

6.         I found it unnecessary to hear submissions from the defender on this point.  On Mrs Daley’s own submissions it could not be said that the children were habitually resident in Poland.  In fact they were habituated to residing in Poland only for holiday purposes.  There was no intention on the part of the pursuer that the children would become habitually resident in Poland and so as regards the children’s presence in that country the most that could be said, in my view, was that they were in transit.  They had not yet set foot in Germany and so they could not be said to have become habitually resident there. In these circumstances it was my view that the children fell to be regarded as being still habitually resident within the jurisdiction of this court.

7.         Habitual residence as a ground of jurisdiction is described in paragraphs 10.10 and 10.11 in the textbook “The Law of Parent and Child in Scotland”, third edition by Wilkinson and Norrie.  In paragraph 10.11 it is stated:

“Where a child has been abducted, the courts of the member state where the child was habitually resident prior to the abduction will retain jurisdiction until the child has acquired a habitual residence in the new member state, and either (a) those with custody rights have acquiesced in the abduction, or (b) the child has been resident in the new member state for one year and is settled there, and in addition one of a number of conditions (all of which relate to the lack of any court proceedings aimed at securing the child’s return) is fulfilled”

It seems to me that the children could be described as having been abducted, given that the pursuer had sent them to Poland with the intention of then moving them to live permanently in Germany, all without permission from the defender as was required in terms of section 2(3) of the Children (Scotland) Act 1995 which states:

“Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in Subsection (6) below.”,

            it not being in dispute, I think, that the defender is a person so described.

8.         Even if the term “abduction” is not apposite then at the very least the pursuer acted unlawfully in removing the children from, and she is not entitled to retain them outwith, the United Kingdom.

9.         Additionally, the pursuer submitted herself to the jurisdiction of this court by raising these divorce proceedings.  These proceedings cannot be determined without having regard to section 12 of the Children (Scotland) Act 1995 which provides that the court shall consider whether to exercise with respect to the children the powers conferred by, inter alia, section 11 of that Act.  It is obvious that the court must have jurisdiction in relation to section 11 orders in this case if it is to comply with that mandatory provision.

10.       For all of the foregoing reasons I was satisfied that I had jurisdiction to make orders in terms of section 11 of the 1995 Act in relation to the children in this case.

11.       Mrs Daley advised me that the pursuer was agreeable to the defender having contact with the children via skype and telephone between Scotland and Germany.  It was clear to me from the submissions made by the defender that although he did not articulate any specific proposals for contact he was extremely unhappy with the pursuer’s proposal.  It was also clear to me that I could not make any decision in regard to matters of residence and contact, even on an interim basis, without much more information than was available to me at the hearing.

12.       Again without calling on the defender to address me on the specific point, I took the view, having regard to the welfare of the children as being the paramount consideration, that the children should be returned to the United Kingdom to enable the arrangements as regards residence and contact to be properly considered and adjudicated upon by the court in the event of the parties being unable to reach agreement.  In any event and standing the terms of section 2(3) of the 1995 Act, the pursuer is not entitled to retain the children outwith the United Kingdom.  I was not persuaded that it was inappropriate to make an order to that effect on account of the pursuer having given up her local authority tenancy.  The defender pointed out that the children could have a home with him, if necessary, until the issues of residence and contact have been resolved.

13.       Accordingly, ex proprio motu, I ordained the pursuer to return the children to the United Kingdom within seven days.  In doing so I exercised my powers in terms of section 11(3)(b) of the 1995 Act.  Mrs Daley sought leave to appeal that decision, which I refused.

14.       Additionally, I prorogated the time for lodging defences by fourteen days from today’s date and ordained the defender to lodge defences and section 11 craves in proper form within that period.  I fixed a further child welfare hearing.