EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Paton Lord Mackay of Drumadoon	[2008] CSIH 52 XA28/07 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL From the Sheriffdom of Grampian, Highlands and Islands at Aberdeen in the cause RAB Pursuer and Appellant; against MIB Defender and Respondent _______

Act: Party (Pursuer and Appellant)

Alt: Loudon; Anderson Strathern LLP; (Defender and Respondent)

9 September 2008

Introductory

[1] This is a defended action of divorce which was commenced in the Sheriff Court in Aberdeen in February 2003. The parties were married in Abu Dhabi on 11 November 1996. There is one child of the marriage, who was born on 5 August 1997. The ground upon which divorce is sought is the defender's desertion of the pursuer. Desertion is denied by the defender. In the written pleadings in the action, as adjusted, the pursuer also seeks a residence order that the child of the marriage should live with him, which failing he seeks an order for contact, including residential contact.

[2] The pursuer, who is Scottish, and the defender, who originates from Somalia, came to the United Kingdom from Abu Dhabi in July 1997 and took up residence in Aberdeen in a house purchased jointly by them. On 18 September 2000 the defender abruptly left Aberdeen with the child and took up residence in London. It is not in dispute that she removed the child to London without the consent of the pursuer. Indeed, it appears that the pursuer had no forewarning of her intention to remove the child and for some time thereafter he remained unaware of the place to which his daughter had been taken. (It appears that he continues not to have been told of the address in or around London at which the defender and his daughter live). Since 18 September 2000 the pursuer has continued to live in Aberdeen. The ground of jurisdiction upon which this action of divorce is based is the pursuer's habitual residence in Aberdeen. This ground of jurisdiction is not disputed. It is also not disputed that on 18 September 2000 both parties and the child had their habitual residence in Aberdeen.

[3] Having removed herself and the child to London, the defender applied to Willesden County Court for a residence order that the child live with her and a "prohibited steps" order prohibiting the pursuer from removing the child from the care and control of the defender or the jurisdiction of the English courts. On 29 November 2000 the District Judge (Morris) granted that application without the pursuer having been given any notice of the proceedings; but the order was qualified as being "with liberty to apply for variation" on giving notice to the defender's English solicitors.

[4] It is not disputed by counsel for the defender - nor the superior English Courts before whom the question has been considered following the pursuer's challenge to the jurisdiction of the English courts - that, on any view, when District Judge Morris made that ex parte order on 29 November 2000 he did not have any jurisdiction to do so. The reason for this unquestionable want of jurisdiction is to be found in the provisions of section 41 of the Family Law Act 1986 which provides:-

"41-(1) Where a child who -

(a) has not attained the age of 16, 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.

(2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom in which he was habitually resident before his change of residence -

(a) without the agreement of the person or all the persons having, under the law of that part of the United Kingdom, the right to determine where he is to reside, or

(b)..."

In view of those provisions it is accepted that for jurisdictional purposes the child could not acquire a habitual residence in England at the least before the expiry of that one year period.

[5] The order of the District Judge was subsequently notified to the pursuer in Aberdeen. He consulted solicitors in Aberdeen who advised him that since an English court was involved he should instruct English solicitors. The pursuer did so. The pursuer, who appeared on his own behalf before us, advanced criticisms of the way in which those English solicitors had proceeded but for present purposes we do not think it necessary to enter into the details in any depth. In due course the pursuer dispensed with their services, on the basis that they had not properly advanced his principal (and correct) contention that the District Judge had no jurisdiction to make the order which he made.

[6] The pursuer thereafter sought to challenge in the English courts the validity of the county court order made by District Judge Morris on the basis that he lacked jurisdiction and that, consequently, that order lacked validity even after the expiry of the one year period specified in section 41 of the 1986 Act. Those efforts were eventually pursued to the Court of Appeal in England which decided the issue adversely to the pursuer. The decision of the Court of Appeal is reported at [2004] 2 FLR 741 to which reference may be made, particularly for the history of the English proceedings. Despite the length and complexity of those proceedings, it may be noted that there has never been any hearing in England in which evidence respecting the substantive issues concerning the welfare of the child has been heard. Certain reports were provided by CAFCASS (as described in paragraphs 25-30 of the judgement of Wall LJ in the Court of Appeal) but in the event, as stated in paragraph 30 of that judgment - "so stark were the issues of fact between R's [the child's] parents that the CAFCASS officer recommended a hearing as to findings of fact but subject to that remained of the opinion that R should not be removed from her present settled environment unless there was considerable concern about her present situation - which, in the CAFCASS officer's view there was not". No such hearing as recommended took place and it is accepted by both parties that the English proceedings are no longer in continuance (at least in any active sense).

[7] Adverting now to the history of the procedure in the present divorce action, with its important ancillary craves for residence, which failing contact, the salient features or events for present purposes are these. At an options hearing on 9 July 2003 the sheriff was advised that a hearing had been fixed for 22 August 2003 in the High Court in England (to which the Willesden County Court proceedings had been transferred) at which "a final determination of the English action is expected". In the light of that information the sheriff (Harris) sisted the action to await that determination. In the event the hearing envisaged for 22 August 2003 in England did not take place. But the sist remained in place and on 3 September 2004 the sheriff (Cowan) refused a motion by the pursuer to recall the sist. The pursuer appealed that decision unsuccessfully to both the sheriff principal and the Court of Session, the appeals being refused on 18 January 2005 and 12 August 2005 respectively. However, not long after the exhaustion of those appellate procedures the defender then enrolled a motion to recall the sist, which the pursuer, understandably, did not oppose. The precise course of procedure following that recall of the sist is, regrettably, not entirely clear from the interlocutors, but it appears that the defender lodged a Minute of Amendment No. 23 of process which, put shortly, made various brief references to the English proceedings but, importantly, included deletion of all pleas in law for the defender other than the fourth and the insertion of the following as a first plea in law on behalf of the defender:-

"1. This court being forum non conveniens in relation to orders under section 11 of the Children (Scotland) Act 1995, in respect of the child the Pursuer's second and third craves should be dismissed"

Those second and third craves relate to the pursuer's wish to have his daughter reside with him, which failing to have contact, including residential contact with her. So, in essence, the defender's contention as advanced in her plea was that any question of the proper decision on the welfare of the child should be left to the English court and that the Scottish court - albeit that it was the court of dissolution of the marriage - should decline jurisdiction. The sheriff (Cowan) heard debate upon this matter and upheld the plea of forum non conveniens. The sheriff principal refused the appeal by the pursuer to him. It is against that decision that the current appeal is taken by the pursuer and appellant.

The Sheriff's Decision

[8] After a brief outline of the history of matters, including reference to the judgment of Wall LJ, and a very short summary of the submissions (which, so far as the pursuer is concerned had included the narration that he was unable to obtain public funding in England), the material part of the sheriff's note containing her reasons for upholding the plea and declining jurisdiction is in these terms: -

"In reaching a decision on whether this Court is the appropriate forum to decide on residence and contact, I have to consider not only the convenience of the parties but also of potential witnesses. I also have to bear in mind that there is a court already competently seized (sic) of the questions. It is relevant that the law of England in respect of residence and contact is not, so far as I am aware, so different in its practical results or its fundamental approach to the law of Scotland that the interests of justice would require jurisdiction to be retained in Scotland.

I do not accept that Mr B would not get public funding to defend the action raised by his wife. He has had funding and representation in the past. While Mr B maintains that his witnesses are based in Aberdeen, it is clear that those witnesses would speak mainly to historical matter. Those able to speak to R's present situation are in London where she lives and goes to school. Mr B has himself been able to travel to London in the past to attend callings of the case. It would be far more difficult for Mrs B to travel to Scotland. Apart from anything else she would either have to leave R with alternative carers in London or bring R to Scotland. Reports have been prepared for the High Court. The reporters are based in London and are reporting on circumstances in London.

It has been said in many of the judgements in the various actions raised by or against Mr B, that it is sad that he seems to focus far more on procedural questions and on what he perceives to be the injustices which have been perpetrated on him than on questions of R's welfare. I can only emphasise to Mr B that he should concentrate on R's welfare and not on procedural points which given the passage of time are no longer relevant.

I am in no doubt that the High Court in London is now the appropriate forum in which residence and contact should be decided."

The Sheriff Principal's Decision

[9] Following a rather fuller narration of the argument advanced to him by the pursuer (which included inter alia reference to a letter from his London solicitors confirming that he would not receive public funding in England) the reasoning of the sheriff principal in refusing the appeal to him is to be found essentially in paragraph [20] of his Note in which the sheriff principal says:-

"[20] The only question which arises in this appeal is whether or not the sheriff was in error in sustaining the defender's first plea in law and dismissing the pursuer's craves 2 and 3 accordingly. When the sheriff issued her judgement on 26 July 2006 the child had been residing with the defender in London for almost six years. She has now been there for a period not far short of six and a half years. I last heard the pursuer some two years ago and since then no new facts of significance have been said by him to have emerged, nor has he advanced any new arguments of substance, which would support the proposition that this court would after all be a more convenient forum than the courts in London in which to determine what orders should be made for the welfare of his child. In these circumstances I see no reason to alter the views which I expressed in paragraph [17] of my judgement dated 18 January 2005. To adapt the language which I then used, it is true of course that many of the witnesses to the events surrounding the removal of the child and the defender from Aberdeen to London in September 1990 (sic) are likely to be based in or near Aberdeen. Likewise, other members of the pursuer's family are, I dare say, based in or near Aberdeen (as of course is the pursuer himself). But the evidence of witnesses to what happened over six years ago when the child and the defender left Aberdeen for London and of witnesses who have not seen the child since she left Aberdeen would be likely to be of little or no assistance to a court in determining what arrangements should be made for her care now. What would be of much more value to a court would be the evidence of witnesses who could speak to the child's present situation and the arrangements that might be made for her care in the future. Given that the child and the defender have now been residing in the London area for over six years, it is I think plain that the majority of these witnesses are likely to be in the London area and that the courts there are better placed than this court to conduct such enquiries as are necessary and make whatever orders are thought appropriate in the interests of the child. This in essence was the conclusion reached by the sheriff when she sustained the defender's first plea-in-law, and I am quite unable to hold that she was in error in reaching this conclusion. This appeal is therefore refused."

The issues in this appeal

(i) The jurisdiction of the English Courts

[10] As part of his submission to us the pursuer advanced the contention, which accords with what he has consistently advanced in the past, that given the manner in which his child was removed from Aberdeen without his consent and in circumstances which, in an international context, would amount to abduction, the English court could not assume jurisdiction on the basis of the habitual residence of his child in England. The habitual residence of a child could not be changed unilaterally, without the consent of the other parent.

[11] Clearly, in order to found the plea of forum non conveniens, it is essential, as a first step, for the party advancing that plea to demonstrate that there is another forum of competent jurisdiction. So the pursuer's further advancement before us of this particular contention is not only understandable in view of his deeply held views on this matter but it is, we think arguably not wholly irrelevant to a consideration of the validity of the plea advanced by the defender.

[12] We were referred both by the pursuer in person and also, helpfully, by counsel for the defender to a number of authorities on the issue whether the habitual residence of a child may be changed unilaterally by the one parent without the consent of the other. At least in the sphere of international child abduction, the authorities to which we were referred are consistent in holding that unilateral change was not to be recognised as a competent ground of jurisdiction. Those authorities included, in Scottish terms, Dickson v Dickson 1990 SCLR 692 in which at page 703C the Lord President (Hope) said, following reference to R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309,:

"A person can, we think, have only one habitual residence at any one time and in the case of a child, who can form no intention of his own, it is the residence which is chosen for him by his parents. If they are living together with him, then they will all have their habitual residence in the same place. Where parents separate, as they did in this case, the child's habitual residence cannot be changed by one parent only unless the other consents to the change. That seems to us to be implied by the Convention."

[13] Within the context of Hague Convention cases, the notion that the habitual residence of a child cannot be changed unilaterally has been adopted in other Scottish cases - see for example Findlay v Findlay (No 2) 1995 SLT 492. We were also referred to Zenel v Haddow 1993 SLT 975 and Cameron v Cameron 1996 SC 17, as well as the passages in Wilkinson & Norrie on Parent and Child (2^nd Edition) at paragraph 11-21 in which the authors express the view that a change in the habitual residence of a child requires the consent of both parents.

[14] Similar expression is to be found as respect England and Wales in Dicey Morris & Collins on Conflict of Laws (14^th Edition). At paragraph 6-129 the authors, having referred to the provisions of section 41 of the Family Law Act 1986 (set out above) say this:-

"This has been held to apply only to cases in which the child is removed to, or retained in, another part of the United Kingdom, but the courts have adopted a more general proposition that a child's habitual residence cannot be changed by the unilateral action of one parent and remains unchanged unless circumstances arise which quite independently point to a change in its habitual residence."

Our attention was also drawn to the speech of Lord Brandon of Oakbrook in the case In re J (a minor) (Abduction; custody rights) [1990] 2AC 562 at 577, which was consistent with that view. Counsel for the defender, in recognition of her duty to assist the court, also referred to other English decisions taken in a context other than Hague abduction cases in which the same concept of the need for consent to a change of the habitual residence of the child had it been expounded. These were principally wardship cases. They were; In re P (GE)(an infant) [1965] 1 CL 568; Re A (a minor) (wardship; jurisdiction) [1995] 1 FLR 767 (followed by the Court of Appeal - In re (M) (a minor) (abduction; habitual residence) [1996] 1 FLR 887; and B - v -H (habitual residence; wardship) [2002] 1 FLR 388.

[15] The court is appreciative of the efforts of counsel for the defender in researching these matters and she is to be commended for having paid such close attention to her duty to the court. In summary, counsel expressed her conclusion on her researches as being that (i) in the context of international child abduction cases the courts in both England and Scotland have followed the view that, as a rule, the habitual residence of a child cannot be changed without the consent of a parent with parental rights; (ii) the same view has been followed in other contexts, such as English wardship proceedings; (iii) there is a tension between that doctrine and the terms of section 41 of the Family Law Act 1986, which appears to assume that, at least within the constituent parts of the United Kingdom, a unilateral change of the habitual residence of a child may be achieved subject to what might be described as the moratorium provided for by that statutory provision; and (iv) the only reported instance which counsel could find of a decision - even in the context of the Family Law Act - in which the court had held that a child removed from one jurisdiction to another without the consent of the other parent could be held to have lost the original place of habitual residence was this case, reported, as already mentioned, at [2004] 2 FLR 741. As part of the fruits of her research counsel for the defender also provided us with a reference to an article by Doctor E M Clive on "The concept of habitual residence", 1997 JR137, in which, at page 145 he discusses the notion that a child's habitual residence cannot be changed by the unilateral action of one parent and suggests that such a notion seems "inherently suspect". In the event, with the lapse of time, circumstances will ensue in which that notion will become a technicality. As Clive puts it, "eventually, however, brute facts will prevail".

[16] We record this branch of the discussion before us not merely to note the industry of counsel but because it does have some bearing on the pursuer's grievance that the English courts, in his view, wrongly assumed jurisdiction. It is clear that - apart from the unquestionable point that the District Judge had no jurisdiction on any view to pronounce the order which he did on 29 November 2000 - there are potentially difficult jurisdictional issues respecting the position after the one year period contemplated by s.41 of the Family Law Act 1986 has expired. We would simply observe that, were these matters respecting the jurisdiction of the English court to have been an issue in a discussion of forum non conveniens in advance of the institution of the English proceedings, it might well have been argued that the jurisdiction of the foreign court was doubtful and that therefore the primary condition of the plea, namely the existence of another court of competent jurisdiction, was not satisfied.

[17] However we are not looking at matters in advance of a decision by the English courts as to whether the English courts have jurisdiction. In the present case one is not in the exercise of endeavouring to predict what another court might decide about its jurisdiction. We know that the Court of Appeal in England and Wales, in a reasoned judgment, considers that the English courts have jurisdiction to make orders respecting the child with which this divorce action is concerned. We naturally respect the decision of the Court of Appeal, as it is clearly the only appropriate court to determine what is the law of England and Wales.

[18] We must accordingly approach matters on the basis that the English courts do consider themselves to have jurisdiction and that there is accordingly another court of competent jurisdiction enabled to consider and rule upon the child welfare matters raised in these divorce proceedings.

[19] We therefore turn to the issue whether, given the existence of that other court, the sheriff was entitled to hold that the sheriff court in Aberdeen is forum non conveniens.

(ii)Forum non conveniens - the nature of the plea

[20] Among the legal systems of the United Kingdom, the doctrine of forum non conveniens was originally developed in Scotland and its introduction into English law is, it appears, relatively recent, the leading case in England being Spiliada Maritime Corporation v Cansulex Limited [1987] 1AC 460. Both the pursuer and counsel for the defender accepted that the speech of Lord Goff of Chieveley in that case, drawing on earlier Scottish authority, conveniently sets out the principles. At page 474, Lord Goff refers to what was said by Lord Kinnear in Sim v Robinow (1892) 19 R 665:

"The plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice."

Lord Goff then goes on to observe:-

"I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However the Latin tag (sometimes expressed as forum non conveniens and sometimes as forum conveniens ) is so widely used to describe the principle, not only in England and Scotland, but in other Commonwealth jurisdictions and in the United States, that it is probably sensible to retain it. But it is important not to allow it to mislead us into thinking that the question at issue is one of 'mere practical convenience'"

Having thereafter referred to further discussion of what might be shortly put as the appropriateness of the translation of the Latin, Lord Goff goes on, at page 475 B - C to say:-

"In the light of these authoritative statements of the Scottish doctrine, I cannot help thinking that it is wiser to avoid the use of the word "convenience" and to refer rather, as Lord Dunedin did, to the appropriate forum."

[21] At page 476 Lord Goff goes on to summarise the law in light of the authorities, including in particular the Scottish authorities. We think it unnecessary to quote at length. Under head (a) his Lordship restates the basic principle, that there be another "available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice". Under head (b) he states, subject to some qualifying observations, that the burden is on the proponer of the plea to persuade the court to exercise its discretion in his favour. His Lordship next, under head (c) discusses the relevance or significance of the fact that the pursuing party in the court in which the plea has been taken has founded jurisdiction as of right. His conclusion on that matter (at page 477E) is this:-

"In my opinion, the burden resting on the defendant is not just to show that [in casu] England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see MacShannon's case [1978] AC 795 per Lord Salmond); and there is the further advantage that, on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions. I may add that if, in any case, the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas."

Under head (d) Lord Goff adverts to some of the factors which may bear upon appropriateness and, in due course, says this:-

"Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case 1926 SC (HL) 13 concerning the use of the word "convenience " in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel in The Abidin Daver [1984] AC398, 415, when he referred to the 'natural forum' as being 'that with which the action had the most real and substantial connection'. So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v James Scott Engineering Group Ltd, 1982 SLT 131), and the places where the parties respectively reside or carry on business."

(iii)The approach of the Sheriff and Sheriff Principal

[22] We have set out earlier in this opinion the material passages disclosing the approach of the sheriff and sheriff principal respectively. The pursuer submitted to us that the sheriff had not addressed herself to the principles underlying the plea of forum non conveniens as set out and summarised in Spiliada. In essence, all that she had done was to have regard to what she saw as the personal, geographical convenience of the witnesses whom she thought would be likely to be called by the defender respecting the child's present circumstances and whom she regarded as likely to be important. Apart from the fact that from his, the pursuer's, point of view there were many witnesses relevant to his contentions, speaking to his present circumstances, the circumstances prevailing prior to the abduction of his daughter and the circumstances of that removal, it was basically wrong to decide the plea simply on some superficial view of the personal convenience of witnesses. The sheriff had not addressed in any substantial sense the real question of the appropriateness of the respective courts. She had made no mention of the principal rule that the divorce court, that is to say the Sheriff Court in Aberdeen, was the court of primary jurisdiction to deal with issues concerning the children of the marriage when a divorce was being sought.

[23] It appeared to us (particularly those of the Bench present at the oral hearing presided by the late Lord Macfadyen - of para [31] of this opinion) that counsel for the defender was unable to make any strenuous attempt to support the decision of the sheriff and the sheriff principal. We well understand her difficulty in offering such support, because it is not apparent from the terms of the judgments of the sheriff and the sheriff principal that either of them had proper regard to the tests or requirements for the upholding of the plea of forum non conveniens which, in this case, displaced the primary jurisdiction of their court, being the court having unquestioned jurisdiction to deal with the dissolution of the marriage. The court below has approached matters essentially on the basis that the issue raised by the plea is the convenience of witnesses - particularly those witnesses speaking to the child's present circumstances in London which the court below regarded as being the important witnesses. However by way of a preliminary observation, we may say that if one is to look simply to the convenience of witnesses, their overall importance in the context of the dispute is not lightly to be prejudged and it is plain that in the present case there are witnesses of importance in Aberdeen. But, more importantly, as is clear from the authorities the test is not one of the practical convenience of witnesses but whether the alternative forum contended for is one in which "the case may be tried more suitably for the interests of all the parties and the ends of justice". That test involves considerations wider that a mere balancing of the convenience of witnesses. Particularly in a case such as this, in which the jurisdiction of the Sheriff Court in Aberdeen is established as of right and given that, as the court of the dissolution of the marriage, it has not only primary jurisdiction in respect of the welfare of the child of the marriage but also the duty to satisfy itself that the welfare arrangements are appropriate, one must look for potent factors indicating not, merely convenience, but that the English court is clearly or distinctly the more appropriate court and the one with more closely connecting factors to the marriage and the welfare of the child who is the issue of that marriage. No reference is made to any of these important considerations in the judgment of the sheriff, nor in the endorsing judgment of the sheriff principal, and we accordingly conclude that the sheriff misdirected herself in looking only to the convenience of witnesses and did not apply the appropriate tests and that this misdirection was not corrected by the sheriff principal.

[24] Having come to that conclusion, we consider that it is appropriate that we consider the merits of the plea de novo.

(iv)de novo consideration

[25] On this matter the pursuer mentioned some factors which he regarded as particularly important. Aberdeen was the place where the family had had its home and in which they had all been habitually resident and from which the child had, in effect, been abducted. The Sheriff Court in Aberdeen was therefore the court most closely connected with the family in its existence as a family. While maintaining still that the English court could not have any jurisdiction, it was, said the pursuer, plain that the residence order pronounced by the District Judge and which had led to the train of litigation in England was an order which was pronounced without jurisdiction. That was a factor to be considered, on any view. There would be witnesses in Aberdeen to speak not only to the circumstances of the child's removal, but also to circumstances of the child's care while in Aberdeen, including police witnesses and professional witnesses. (In this regard it was to be borne in mind that the child has, unfortunately, Down's Syndrome). In granting divorce, the sheriff would have to address the welfare of the child. There had never been any inquiry into that matter in the courts in England. There would in any event have to be a proof or hearing on the welfare issues. The defender had a full legal aid certificate respecting the current action, whereas he had been advised by his solicitors that he would not receive public funding in England to pursue any further proceedings relating to the merits of the child's welfare.

[26] For her part, counsel for the defender accepted, in our view rightly, that the Sheriff Court in Aberdeen unquestionably had jurisdiction and that the divorce action had primary jurisdiction respecting issues concerning the welfare of the children of the marriage. However, said counsel, the child had now been resident in England for a long time. Her present circumstances were likely to be what was important and therefore the bulk of the witnesses on that matter would be from England. The fact was that, not withstanding that the initial order by the District Judge had been made without jurisdiction, the English courts had been engaged with the case for a number of years. It was also suggested that urgent measures could best be addressed by an English court.

[27] In our view, the plea of forum non conveniens should not be upheld. We start from the undisputed fact that the jurisdiction of the Sheriff Court in Aberdeen in this divorce action is not open to question. Moreover, Aberdeen was the location of the habitual residence of both parties prior to the separation. At no time did the parties live together in England. So, in terms of connection, Aberdeen has a primary closer connection to all the members of the family than the county court in Willesden. As counsel for the defender rightly acknowledged, the court of dissolution of the marriage has a primary jurisdiction respecting the arrangements for the children of the marriage. While the procedural rigour of the rule enacted in section 20 of the Matrimonial Proceedings (Children) Act 1958 has been modified to some extent in the current provision in section 12 of the Children (Scotland) Act 1995, it is still incumbent upon a court invited to grant decree of divorce to consider the welfare of the children of the marriage. The merits of the pursuer's wish to have residence or contact orders have never been explored in any substantive hearing in England. That is no doubt, if not wholly, at least in part, due to the pursuer's determination to pursue the issue of jurisdiction rather than obtaining orders facilitating contact. That determination to pursue those issues may possibly be a material matter in the consideration of the future advancement of the merits of his application for residence or contact. However, from a jurisdictional point of view, that is irrelevant. The simple fact is that in order to address the pursuer's claims to have residence or contact orders an inquiry will be required. Since the primary responsibility is on the court of dissolution of the marriage to address the welfare of the children of the marriage it is difficult to see how that court could abdicate that responsibility, save possibly in very exceptional circumstances. No such exceptional circumstances are present in the proceedings before us. If, as is evident, inquiry into the future arrangements for the residence of and contact with the child of this marriage is required, and the sheriff court has the primary jurisdiction of satisfying itself on these matters, it is hard to see how it could ever be better for it jurisdictionally to defer that assessment or judgement to another court, save in very exceptional circumstances.

[28] We would add, by way of amplification of the foregoing, that we are not moved by the circumstances that many of the witnesses whom the defender might wish to lead respecting the present circumstances of the child in England are based in that part of the United Kingdom. For his part, the pursuer points to there being witnesses whom he would wish to lead who are in Aberdeen. It is doubtful to what extent in considering the convenience of witnesses in a case such as this, the court can properly form a pre-judicial view of their relative importance. At all events, "witness counting" in a competition between Aberdeen and London does not, in our view, assist in any real way in a decision as to whether the court of primary jurisdiction should be displaced as being clearly and distinctly less appropriate than another forum having closer connection with the family dispute.

[29] We would add that the fact that the defender has legal aid to conduct her defence of this litigation whereas the pursuer does not have legal aid, or may not be entitled to legal aid, for any future proceedings in England, is not irrelevant. The sheriff rejected the pursuer's statement that he would not get public funding for further proceedings in England out of hand. She had no real basis for doing so. The letter subsequently produced to the sheriff principal confirmed that statement. The fact that the pursuer had had public funding at some earlier stage is irrelevant to whether he would obtain it for new contested proceedings of substance. But in any event, the fact is that the defender has undoubted public funding respecting the sheriff court action. Whether the pursuer might get public funding for the contested proceedings in England implicitly envisaged by the Sheriff in her upholding the plea of forum non conveniens, was at best a matter of considerable doubt.

[30] For all the foregoing reasons we find the plea of forum non conveniens to be without merit. We shall therefore sustain the appeal; recall the interlocutor of the sheriff principal of 15 January 2007 refusing the appeal to him from the interlocutor of the sheriff of 26 July 2006 and 4 September 2006; recall those interlocutors of the sheriff; repel the plea of forum non conveniens and continue the appeal on expenses before remitting to the sheriff to proceed as accords; that is to say with the divorce action including in particular all the issues raised by the craves respecting the residence of or contact with the child of the marriage.

[31] Finally, it is appropriate to record that the oral argument was heard before a Bench presided by the late Rt Hon Lord Macfadyen. His sad, and untimely, death ensued shortly thereafter while the appeal was at avizandum. Parties in due course agreed that, in order to avoid a full re-hearing, matters might thereafter proceed in light of the "Note of Facts, Issues, and Submissions" prepared by the surviving members of the Bench, plus parties comments on or corrections to that document, all of which would be placed before an additional or substitute judge, with it being open to the additional judge to convene an oral hearing on any point of concern to that additional judge. In the event, no such hearing was thought necessary by the additional, or substitute, judge, Lady Paton. We would also explain that in his written comments the pursuer sought further orders in respect of an interim interdict obtained by him on 9 February 2005, the further order relating to the child's passport. However that interim interdict was obtained in separate proceedings. The request made by the pursuer in those written comments cannot form part of this appeal. In conclusion the Court records its appreciation of the co-operation of parties in resolving the procedural issues arising from Lord Macfadyen's death.