COURT Ref. No.: F 37/05
NOTE (No. 3)
G. O. T. PURSUER
K. J. K DEFENDER
- [1]The combined effect of the judgment contained in my two previous Notes was that this court exercised jurisdiction under Scots law in respect of the pursuer’s application for a residence order, added at a late stage in the proceedings, because the children’s habitual jurisdiction was retained in Scotland pursuant to section 41 of the Family Law Act 1986 at the time that application was made and that section 41(3) of the Family Law Act 1986 did not apply to this case so as to deprive this court of its continuing jurisdiction.
- [2]The defender’s agent then insisted that albeit this court exercised jurisdiction in terms of sections 8, 9 and 41 of the Family Law Act 1986, it should nonetheless decline to exercise its jurisdiction in respect of the pursuer’s application for a residence order failing which a contact order in respect of the children made under section 11 of the Children (Scotland) Act 1995 as in his submission the English County Court was the “more convenient and natural forum” (as described in the defender’s seventh and eight pleas in law).
- [3]I appointed the parties to be heard on these preliminary pleas at a debate on 28 February 2013. I understood the defender’s agent to accept that if his plea of forum non conveniens were sustained, it would be inappropriate to dismiss this action in terms of the defender’s seventh plea in law.
- [4]Rather, in terms of section 14 of the Family Law Act 1986, the appropriate disposal would be for the court to sist these proceedings to enable either or both parties to make appropriate applications to the County Court in terms of section 8 of the Children Act 1989.
- [5]I accordingly repelled the defender’s seventh plea in law at the diet of debate, but made avizandum in respect of the defender’s eight plea in law that the action be sisted in favour of applications to be made by either or both of the parties to the County Court as the “more convenient and natural forum” to determine issues relating to residence of and contact with the children.
Sequence of events
- [6]There can be little room for doubt that the children were habitually resident in Scotland on 27 June 2011.
- [7]The whole proceedings in relation to residence and contact were conducted solely in Scotland from 2005 until the defender issued proceedings in the English County Court on 21 November 2012.
- [8]The district judge transferred the English proceedings to the High Court on the direction of HH Judge Bromilow.
- [9]Those proceedings were listed for directions in the High Court on 21 December 2012. I have had sight of HH Judge Bromilow’s helpful judgment.
- [10]At paragraphs 9 and 10, he was “firmly of the view that [the English] application was premature, it is improperly made and it must be dismissed” as “the whole issue [of jurisdiction] is being dealt with very properly on a fair footing by the Scottish courts”.
- [11]As I understand it therefore the question of jurisdiction within the United Kingdom as between the Scottish and English and Welsh jurisdictions has been left to the determination of this court. I was informed at the debate on 28 February 2013 the defender had not appealed the decision of HH Judge Bromilow to dismiss the English proceedings as premature.
- [12]The third and final stage of my task in deciding on jurisdictional issues was therefore to consider whether the present proceedings in Scotland should be sisted to enable (new) proceedings to be issued in the English County Court.
The Law: Introduction
- [13]The common law plea of forum non conveniens finds statutory expression in the context of residence and contact disputes in Scotland in section 14(2) of the Family Law Act 1986.
- [14]Section 14(2) confers discretion on the Scottish court exercising jurisdiction in an application for a residence order or contact order to “sist the proceedings on that application” where it appears to the court either:
(a) Proceedings “are continuing” with respect to the application “outside Scotland or in another court in Scotland”; or
(b) “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”.
- [15]Section 14(2) (a) has no application to this case at this time, standing HH Judge Bromilow’s decision to dismiss the English proceedings on 21 December 2012, and there having been no appeal made against that decision by the defender.
- [16]The effect of this is that no proceedings are currently “continuing” in England and that essential precondition for the applicability of section 14(2) (a) has not been satisfied.
- [17]So far as section 14(2) (b) is concerned, the issues for this court are twofold:
(a) is it “more appropriate” for the matters raised in these proceedings to be determined in England; and
(b) is it “likely” proceedings would be taken there for determination of these matters?
- [18]The “matters” in question are of course those of the residence of and contact with the children.
- [19]Taking the issues in reverse order, I am satisfied it is “likely” the defender would issue proceedings in England if this court sisted these proceedings in order to enable her to do so.
- [20]Firstly, it is her preference that proceedings take place in England, where she and the children currently live.
- [21]Secondly, her previous proceedings were dismissed as premature. Were this court to relinquish jurisdiction in favour of England and Wales, then I have little doubt she would once again issue proceedings in that jurisdiction.
- [22]This means the ultimate issue before me is whether the courts of England and Wales are the “more appropriate forum” for these proceedings.
The parties’ submissions on the “more appropriate forum”
- [23]In summary, and numbering them, the defender’s agent’s various submissions were:
(1) The English County Court is the court of the children’s “present residence”;
(2) The children attend school there; they have friends there, “their life now revolves around there”;
(3) Any reports which may be needed to ascertain the children’s views will “necessarily come” from persons or organisations situated in or near there;
(4) Scotland no longer has any relevance to either the defender or the children;
(5) The defender is of limited means and finds it difficult financially to travel to Scotland for court hearings whereas the pursuer can more readily afford the time and money to travel to England for court hearings; and
(6) The children do not wish to return to Scotland at any time.
(7) None of the witnesses on the pursuer’s list have seen the children since August 2011 and cannot therefore state what the children’s feelings are now or speak to their current circumstances; their evidence is “yesterday’s news”;
(8) Mr B’s report is now out of date as to the children’s wishes-they no longer wish contact with him since the pursuer’s contempt of court proceedings;
(9) All “relevant witnesses” now live in England and it would prejudice the defender in assembling witnesses because of the distance they would have in travelling to Scotland to give evidence; and
(10) Severe weather would have prevented witnesses travelling to Scotland for the proof previously assigned for 6 December 2012;
(11)The witnesses in Scotland could only speak to historical matters;
(12) The children would be prejudiced if the defender attended court in Scotland as they would require to be left with carers while their mother was in Scotland;
(13) This was not a divorce action, thus the court did not have to consider the children’s welfare before pronouncing decree of divorce;
(14) The pursuer knew about the children’s removal and did not prevent it;
(15) Proceedings in England would be more expeditious than proceedings in Scotland and would take only one day to resolve whereas it would take more time in Scotland to resolve matters;
(16) The defender refuses to bring the children to Scotland for their views to be ascertained directly by the court; and
(17) “There was nothing wrong with the county court in England”.
- [24]The pursuer’s agent argued this court had the “most natural, real and substantial connection” with the matters in dispute.
- [25]In support of that proposition, she submitted, numbering her points:
(1) Proceedings had been ongoing since 2005; all documents and all orders in these proceedings and the contempt proceedings were readily available to this court;
(2) The children were being pressured by the defender into not having contact with their father;
(3) The cause would have proceeded to proof on 6 December 2012 if the defender had not, very late in the day, made pleas as to no jurisdiction in this court;
(4) The social work and children’s hearing records were more readily available in Scotland;
(5) On 21 February 2013, the defender was found in contempt of court for failing to obtemper contact orders made by this court;
(6) The witnesses in Scotland in connection with these proceedings had important evidence to give, that bore on the welfare of the children;
(7) The children had been born in Scotland and had had their whole family connections with Scotland until removed by the defender on 27 June 2011;
(8) CAFCASS in England had only issued a skeleton report in which the children’s views did not appear; and
(9) It would be possible for this court directly to obtain the up to date views of the children.
- [26]In addition, she informed me the defender had undertaken, in the contempt proceedings, to allow the pursuer contact with the children to purge her contempt; she would appear again before the sheriff in connection with the contempt proceedings on 19 March 2013.
RAB v MIB 2009 SC 58
- [27]In this case, the Inner House reviewed the authorities in connection with the plea of forum non conveniens in connection with cross border residence disputes within the United Kingdom.
- [28]In doing so, the Court set out the considerations which a court in Scotland must follow when considering whether to decline to exercise its jurisdiction in its own residence proceedings in favour of proceedings in the courts of another part of the United Kingdom.
- [29]It is important, as background, to appreciate that the intra United Kingdom scheme of jurisdiction in residence and contact disputes is set out in the Family Law Act 1986, which aims to provide separate but uniform rules for the laws of each of the three United Kingdom jurisdictions of England and Wales, Scotland and Northern Ireland.
- [30]Under these rules, the divorce court is afforded primacy in terms of jurisdiction. If there is no marriage or, in the case of a marriage, no divorce proceedings, jurisdiction is founded on the habitual residence of the child at the date of the application for the residence or contact order. If the child is not habitually resident in any part of the United Kingdom, the courts of the part of the United Kingdom in which the child resides at the date of the application exercise jurisdiction. Courts which make residence and contact orders have jurisdiction to vary them until another court in the United Kingdom competently makes a different order superseding that original order.
- [31]RAB v MIB was a divorce case.
- [32]In my view, it is not helpful to distinguish cases on the basis of their different facts and types of proceeding.
- [33]The important point is to consider the tests to be applied by the court in considering a plea of forum non conveniens, as set out by the Inner House in RAB v MIB, in light of the facts and circumstances of the particular case.
- [34]For that reason, I do not propose to consider and contrast the circumstances in RAB v MIB which led the Inner House to refuse to uphold the plea of forum non conveniens in the circumstances of that case except where relevant to this case; nor do I propose to carry out a similar exercise in relation to the sheriff’s decision to refuse to uphold the plea in the separate sheriff court variation case of B v B 2009 SLT (Sh Ct) 24.
- [35]Somewhat remarkably, perhaps, the defender’s agent asked me to consider and apply the reasoning of the sheriff and sheriff principal in RAB v MIB, notwithstanding the sheriff had fallen into error in considering the plea of forum non conveniens and the sheriff principal had failed to correct that error.
- [36]In my opinion, it is my clear duty to apply the legal tests set out by the Inner House in RAB v MIB to the facts and circumstances of this case. I do not propose to consider and contrast the approach of either the sheriff or sheriff principal in RAB v MIB. It was because they had fallen into error the Inner House considered the plea of forum non conveniens on a de novo basis in that case.
- [37]As I understand RAB v MIB, the plea of forum non conveniens is really a plea as to the most appropriate court to determine a particular dispute.
- [38]Some important principles apply.
- [39]Firstly, the court considers the “natural forum”. That is the court “with which the action has the most real and substantial connection”. It is for connecting factors in this sense that the court must first look; these include factors affecting convenience or expense such as availability of witnesses and the applicable law: see RAB v MIB at paragraph 20, approving relevant authorities on the plea of forum non conveniens.
- [40]In connection with witnesses, the Court in its de novo consideration of the plea of forum non conveniens was “not moved” by the fact there were witnesses in different parts of the United Kingdom.
- [41]In both that and this case, both parties point to the presence in witnesses in different parts of the United Kingdom. In RAB v MIB, the Court was reluctant to “witness count” or form a “pre-judicial view” of their relative importance: see paragraph 28.
- [42]So tasked with this authoritative guidance, I must ask myself in relation to this case is this court or the English County Court the “natural forum” for these proceedings? In other words, with which court do these proceedings have their most real and substantial connection?
- [43]In my opinion, the defender’s agent has misunderstood the significance of this point so far as it relates to the jurisdictional rules in the Family Law Act 1986.
- [44]The children’s presence in England is a residual ground of jurisdiction, where they have no habitual residence in any part of the United Kingdom. I am not concerned with whether the children are habitually resident in England. That is a matter for the English courts. The High Court dismissed the English proceedings as premature. I have held this court to have had jurisdiction. There are no ongoing proceedings in England. This court has primary jurisdiction.
The children attend school there, they have friends there,” their life now revolves around the place of their residence
- [45]This in my opinion puts the cart before the horse. These are relevant considerations in assessing the children’s welfare, not in assessing appropriate forum.
Any reports which may be needed to ascertain the children’s views will “necessarily come” from persons or organisations situated in or near the place of the defender’s residence
- [46]I do not accept this as factually correct; this court has power to appoint a reporter to take the children’s views in England, or to order that it obtain those views by directly interviewing the children.
Scotland no longer has any relevance to either the defender or the children
- [47]This also puts the cart before the horse; it may be relevant to welfare considerations, but not to appropriate forum. It also involves the court in a taking a pre-judicial view of the children’s wishes and feelings, without having had the benefit of their most recent views or hearing evidence.
The defender is of limited means and finds it difficult financially to travel to court hearings whereas the pursuer can more readily afford the time and money to travel to England for court hearings
- [48]This seems to me to have some real bearing on the question of most appropriate forum, but difficult as it may be for the defender, she has been able to attend court in Scotland in the past. This does not seem to me to a particularly weighty factor.
The children do not wish to return at any time
- [49]Again, this is putting the cart before the horse and invites the court to take a pre-judicial view of the facts.
None of the witnesses on the pursuer’s list have seen the children since August 2011 and cannot therefore state what the children’s feelings are now or speak to their current circumstances; their evidence is “yesterday’s news”
- [50]As with the Inner House in RAB v MIB, I am not moved by this point. In my opinion, witnesses from both Scotland and England are likely to assist the court in determining what is in the children’s best interests. I do not think it helpful to “witness count” or form a pre-judicial view of the relative importance of the witnesses.
Mr B’s report is now out of date as to the children’s wishes-they no longer wish contact with him since the pursuer’s contempt of court proceedings
- [51]Once again, I think this puts the cart before the horse and invites the court to form a pre-judicial view as to the children’s present wishes.
All “relevant witnesses” now live in England and it would prejudice the defender in assembling witnesses because of the long distance they would have in travelling to give evidence
- [52]Yet again, I think this puts the cart before the horse and invites the court to pre-judge who are the relevant witnesses in assisting it determine what is in the best interests of the children.
Severe weather would have prevented witnesses travelling to Scotland for the proof previously assigned for 6 December 2012.
- [53]This seems no longer to have any relevance.
The witnesses in Scotland could only speak to historical matters
- [54]This is repetition of his earlier point, to which, for the reasons given, I attach little weight.
The children would be prejudiced if the defender attended court in Scotland as they would require to be left with carers while their mother was in Scotland
- [55]Perhaps so, but this is not an unusual circumstance; it does not bear on the question of the more appropriate forum.
(3) This was not a divorce action, thus the court did not have to consider the children’s welfare before pronouncing decree of divorce
- [56]This was an important consideration in the Inner House’s de novo consideration of RAB v MIB.
- [57]It is not relevant to the present case because the parties were unmarried; no question could ever arise of there having to be divorce proceedings between them.
- [58]In my opinion, the defender’s agent has misunderstood RAB v MIB as it relates to forum non conveniens. The guidance given by the Inner House in RAB v MIB as to forum non conveniens applies to all pleas of forum non conveniens, irrespective of the basis upon which the court exercises jurisdiction under the Family Law Act 1986. It does not only apply to residence cases founded upon divorce jurisdiction.
The pursuer knew about the children’s removal to Somerset and did not prevent it
- [59]I have already dealt with this in my previous Notes. He could not prevent their removal and did not agree to or acquiesce in their removal. This is of no relevance to which court is the more appropriate forum.
Proceedings in England would be more expeditious than proceedings in Scotland and would take only one day to resolve whereas it would take more time in Scotland to resolve matters
- [60]Part of the guidance in RAB v MIB is that the court considers applicable law. Here Mr Pumphrey argues family proceedings in England are more expeditious than those in Scotland. There may be some truth in that suggestion, but the Scottish proceedings were ready for proof on 6 December 2012. The delay since then has been wholly attributable to the defender’s pleas as to jurisdiction.
- [61]This is a relevant factor, but given these proceedings are much further advanced than any intended English proceedings, I attach little weight to these considerations.
The defender refuses to bring the children to Scotland for their views to be ascertained directly by the court
- [62]This is a matter for the court, not the defender, who has already been found in contempt of court.
“There was nothing wrong with the county court in England”
- [63]I agree but that is not the issue before this court.
- [64]Looking to matters as a whole, my task is to determine with which court these proceedings have the most real and substantial connection.
- [65]I do not yet know the outcome of the contempt proceedings on 19 March 2013 in connection with the defender’s non-compliance with previous contact orders of this court and I have not enquired at this stage.
- [66]I simply consider that not to be a relevant factor in considering which court is the most appropriate to determine the pursuer’s primary crave- for a residence order. Moreover, I cannot take into account this matter as it post-dates the debate on 28 February 2013 and I have not heard or invited submissions on it.
- [67]In answering with which court these proceedings have their most real and substantial connection, I note:
(1) Proceedings have been ongoing in Scotland since 2005; all documents and all orders in these proceedings and the contempt proceedings are readily available to this court;
(2) The social work and children’s hearing records are more readily available in Scotland;
(3) The children were born in Scotland and had had their whole family connections with Scotland until removed by the defender on 27 June 2011;
(4) CAFCASS in England has only issued a skeleton report in which the children’s views did not appear; and
(5) It is possible for this court directly to obtain the up to date views of the children.
- [68]I attach significant weight to these factors; and little weight to the factors relevantly advanced by the defender. I am satisfied that, weighing all these factors together, this court remains the more appropriate one to determine the issues before it. I therefore refuse to uphold the defender’s plea of forum non conveniens and I repel her eighth plea in law to sist these proceedings under section 14 of the Family Law Act 1986.
