FAMILY ACTION G O T v K J K

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2014SCDUM27

 

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

COURT Ref. No.: F 37/05   

   

                    NOTE

            by

SHERIFF GEORGE JAMIESON

 

            in the family action F37/05

 

G. O. T.                                               PURSUER

 

 against

 

K. J. K.                                                 DEFENDER

                                                                 
                                                            ____________________________________________  

 

 

 

 

 

Dumfries         12 December 2012           

 

The sheriff, having made avizandum on the question of jurisdiction anent the pursuer’s application for a residence order in respect of the children, and now having resumed consideration of the cause Finds , subject to section 41(3) of the Family Law Act 1986 not applying in this case, that in terms of sections 9 (b) and 41(2)(a) of the Family Law (Scotland) Act 1986  the children were habitually resident within the sheriffdom on the date of the pursuer’s application for a residence order in respect of them, Finds therefore, subject to section 41(3) of the Family Law Act 1986 not applying in this case , that this court may 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, Continues consideration of the cause until Thursday 27 December 2012 at 10:00am to hear further submissions on whether section 41(3) of the Family Law Act 1986 applies in this case, Reserves meantime consideration of the defender’s preliminary plea number three that the action (sic) should be dismissed and her preliminary pleas seven and eight regarding England and Wales being the more convenient or appropriate jurisdiction to consider the making of a Part I order in respect of the children under the Family Law Act 1986.

 

 

Sheriff George Jamieson

 

 

NOTE

 

Background

 

• [1]The pursuer is the registered birth father and the defender the mother of the children. The parties were not married to each other at any time. Consequently, as both children were born before section 23 of the Family Law (Scotland) Act 2006 was brought into force on 4 May 2006, the pursuer initially had no parental responsibilities and rights conferred upon him in respect of the children under sections 1 and 2 of the Children (Scotland) Act 1995: Family Law (Scotland) Act 2006, section 23(4).

   

• [2]But on 22 September 2005, Sheriff Barr made an order in this process “under and in terms of section 11(2)(b) of the Children (Scotland) Act 1995 conferring parental responsibilities and rights on the pursuer in respect of the children”. This order has never been varied or recalled and it remains in force to this date. Thus as a holder of parental responsibilities and rights in respect of the children, the pursuer has the right to “have the [children] live with him or otherwise to regulate the [children’s] residence” until the children attain the age of sixteen years: Children (Scotland) Act 1995, sections 2(1) (a), 2(7) and 3(3).

   

• [3]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. Various contact orders have been made along the way in favour of the pursuer.

   

• [4]The pursuer alleges that of late the defender has not obtempered these orders. He has made a separate application in a separate process to this court for a finding the defender is in contempt of court. The defender failed to appear at a proof diet in those proceedings and a warrant was issued for her arrest. On 6 December 2012 she voluntarily appeared to answer the warrant. Those proceedings will in due course resume.

   

• [5]The pursuer has become frustrated that the defender has not been allowing him contact with the children. He has therefore made application to this court for a residence order in respect of the children under section 11 of the Children (Scotland) Act 1995[1]. The defender contends that, as she has moved with the children to reside in England and Wales, this court does not exercise jurisdiction in respect of that application.

   

   

• [6]Given the issue of this court’s jurisdiction concerning the application for a residence order in respect of the children is contested in this case, the court assigned a diet of debate at which it could consider this issue and make any necessary directions as to procedure. The case called before me for debate on 6 December 2012. After hearing debate, I “made avizandum”, which is the technical term in Scots law for reserving judgment on the issue before it. Upon resuming consideration of the case, I have pronounced a further interlocutor finding that this court might exercise jurisdiction under Scots law in respect of the pursuer’s application for a residence order. The purpose of this Note is to explain my reasons for that finding.

   

• [7]The defender’s agent suggested it was for the High Court in England and Wales to determine the issue of jurisdiction. I will deal with that important issue later in this Note. His submission failed to address the constitutional point that the High Court of England and Wales does not exercise jurisdiction in Scotland. It is for the Scottish courts to determine if they exercise jurisdiction in any particular action. The issue having been raised, and contested, it was my duty to determine it.

   

• [8]It would have been open to me of my “own accord” to remit the action to the Outer House of the Court of Session for determination of the jurisdictional issue in terms of section 37(2A) of the Sheriff Courts (Scotland) Act 1971. This is the similar course adopted by the district judge who I understand has transferred the English county court proceedings to the High Court.
• [9]But there are a number of important differences. The Outer House of the Court of Session (equivalent of course to the High Court of England and Wales) does not sit on circuit. It sits only in Edinburgh. Parties would require to instruct counsel or a solicitor advocate to appear before that Court. Solicitors routinely appear in the sheriff courts of Scotland in a range of complex cases. To have remitted this action to the Court of Session at this stage would therefore have burdened the parties with the delay, considerable expense and the inconvenience of travelling to Edinburgh for a hearing, whereas the issue could be resolved locally by this court without the further delay or additional expense[2].

   

  SUBMISSIONS

   

• [10]The defender’s agent submitted in essence that the pursuer had “agreed” to the children leaving Scotland for England. Their habitual residence had not therefore been extended by the twelve month period referred to in section 41 of the Family Law Act 1986. He referred to a number of adminicles of evidence from which he said that that agreement could be inferred. He maintained that even if this were “acquiescence” rather than express agreement, then “acquiescence” would suffice for the purpose of section 41.

   

  Mr B’s Report

   

• [11]The defender’s agent referred me to Mr B’s Report at 5/8 of process[3]. At pages 4 and 5 of this report, Mr B notes the pursuer as indicating it became obvious to the pursuer following the defender’s move that “the contact arrangements would require to alter. He wished to ensure that his relationship with his daughters continued. He did not seek to prevent Miss K moving. He did however wish to secure residential contact during holiday periods”.

   

  The proceedings before the children’s hearing

   

• [12]The defender’s agent noted the pursuer had not sought to interdict the children’s removal from Scotland, or appeal the terms of the supervision requirement that the children reside with the defender in England. He suggested the pursuer had given his consent to the social workers that the children relocate, but did not point to any document supporting this assertion.

  Email of 25 August 2011

   

• [13]The defender’s agent referred me to an email from the pursuer’s former solicitor, to the defender’s former solicitor, stating that the pursuer “did not wish 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”.

   

  Letter dated 14 June 2011, Dr S’s letter dated 29^th February 2012 and the Report on Investigation of Complaint dated 27 July 2011

   

• [14]The defender’s “Note of Argument” number 21 of processsuggests these three documents, numbers 5/6, 5/12 and 5/14 of process respectively “all show that the pursuer was well aware of the defender’s proposed move prior to her actually making the move [27 June 2011]”.

   

• [15]The letter dated 14 June 2011 informed the pursuer the defender intended to move “once the social work involvement is at an end”. It invited the pursuer’s proposals anent contact with the children.

   

• [16]Dr S’s letter explained why the defender could not attend court in Scotland on that occasion.
• [17]The Report on the investigation into the pursuer’s complaint against the Social Work Department discloses the pursuer was aware of the defender’s plans to move on 28 June 2011(sic).

   

  Defender’s legal submissions

   

• [18]The defender’s agent argued in his oral submissions that the purpose of section 41 of the 1986 Act as disclosed in the annotation thereto in Current Law Statutes was to prevent the “unauthorised” removal of the children from Scotland. Since their removal had been “authorised” by the children’s hearing, he argued section 41 did not apply.

   

• [19]He argued in his Note of Argument that firstly section 41 did not apply as the children had been residing out of Scotland for more than a year now- one year and five months. They were habitually resident in England and Wales and the court in Scotland no longer had jurisdiction to entertain the pursuer’s application for a residence order.

   

• [20]He argued in his Note of Argument that secondly section 41 did not apply as in his submission the one year rule only applied if the children were removed in contravention of a court order. He submitted the pursuer knew in advance the children would move to England. They were not abducted.

   

   

  Pursuer’s submissions

   

• [21]Ultimately I have preferred the pursuer’s agent’s analysis and much of what she submitted will be incorporated in my discussion on the factual and legal issues arising in this case. She did however seek to argue that the children were habitually resident in Scotland independently of section 41 of the 1986 Act.

   

• [22]She recognised however that was a rather weak argument. It is plain to me that after such a passage of time, the children will have lost their de facto habitual residence in Scotland: see Scullion v Scullion 1990 SCLR 577 and Morris v Morris 1993 SCLR 144[4].

   

• [23]The issue in this case is ultimately therefore the meaning and effect of section 41 of the 1986 Act. This court will retain jurisdiction in respect of the pursuer’s application for a residence order in respect of the children only if section 41 has the effect argued for it by Ms Latham. I turn now to discuss these issues.

   

   

  DISCUSSION

   

  Preliminary

   

• [24]In previous cases in Scotland, the question has arisen whether the court is to apply the Scottish provisions of the Family Law Act 1986, which serves to allocate jurisdiction among the three legal systems of the United Kingdom, or the EU Council Regulation No. 2201/2003, in determining cross-border issues of jurisdiction within the United Kingdom. The Scottish sheriff court case of S v D [2006] Fam. LR 2006 held the Council Regulation applied even in respect of intra-United Kingdom conflicts of jurisdiction. That decision is a controversial one and academic and legal opinion in Scotland differs on the question of which law to apply. I am not bound by the decision in S v D. It has not been followed in Northern Ireland. In Re ESJ A Minor (Residence Order Application; Jurisdiction within the United Kingdom; Applicability of Council Regulation (EC) No. 2201/2003) [2008] Fam. 6, Morgan J, declined to follow S v D. It is not necessary for me to enter into this conflict in detail. I prefer the approach of the High Court in Northern Ireland and respectfully agree with the reasons given by Morgan J for holding that the EU Regulation has no application within the UK. This means jurisdiction in relation to the present application for a residence order is governed by the Scottish provisions of the Family Law 1986. The parties’ agents were in agreement with that in this case and debate focussed only on the jurisdictional provisions of the 1986 Act.

   

  Chapter III of Part I of the Family Law Act 1986

   

• [25]This Chapter is headed: “Jurisdiction of Courts in Scotland”. As in England and Wales, the court in Scotland has jurisdiction to entertain an application for a “Part I order” “otherwise than in matrimonial or civil partnership proceedings”[5] principally on the basis of the child’s habitual residence being in its territorial jurisdiction. Since the parties were never married to each other in this case, there can be no question of matrimonial proceedings between them.

   

• [26]It is no part of my task to carry out a comparison of the jurisdictional provisions of the 1986 Act as between Scotland and England and Wales. It is important to understand though that Scots law does not have special rules of jurisdiction based on service of process within the jurisdiction or any requirement to obtain authority of the court to serve out of the jurisdiction. Jurisdiction in independent proceedings for a Part I order is based solely on the child being habitually resident in Scotland “on the date of the application” for the Part I order[6].

   

• [27]In Scotland, “Part I order” has the meaning assigned by section 1(1) (b) of the Family Law Act 1986. This effectively sets out a general definition with a long list of court orders that are excluded from the definition of Part I orders.
• [28]The general definition inter alia includes an order “with respect to the residence” of a child. This includes an application for a residence order under section 11 of the Children (Scotland) Act 1995, such orders not being excluded from the general definition. “Child” is defined as a person who has not attained the age of 16 years[7].

   

• [29]By virtue of section 1(6) of the Family Law (Scotland) Act 1986, provision may be made by act of sederunt prescribing in relation to orders within subsection (1) (b), “what constitutes an application for the purposes of Part I”[8]. Although this appears a relatively obscure provision, it is does emphasise the importance, in the Scottish scheme of jurisdiction under the 1986 Act, of fixing the “date of an application” under Part I of the Act.

   

• [30]Rather unhelpfully perhaps, it appears this power has never been exercised and I am left to proceed on general principles. By virtue of OCR 1993, rule 33.61 an application for an order under section 11 of the Children (Scotland) 1995 (otherwise than in matrimonial proceedings), may be made either by an action for a section 11 order or by crave in any other family action. The pursuer chose to apply for his residence order by amending his original contact action to include a crave for a residence order.
• [31]The pursuer’s agent submitted that the date of that application was the date on which she lodged her “Minute of Amendment” containing the proposed crave for a residence order with the court. This forms number 12 of process and is dated as lodged with the sheriff clerk on 14 June 2012. A Motion, 7/10 of process, to allow its receipt was also lodged with the court on that date. Both these documents were intimated to the defender by her in accordance with the OCR 1993 on 13 June 2012.

   

• [32]The normal rule in ordinary cause proceedings is they commence when intimated to the other party, rather than when the “application” is lodged with the court. In this case, intimation was made on 13 June 2012 and the Minute of Amendment and Motion lodged on 14 June 2012. By interlocutor of Sheriff Ross dated 14 June 2012, the defender being absent, these documents were allowed to be received by the court. Further procedure was ordered with a hearing on formal amendment of the pleadings taking place on 19 July 2012[9].

   

• [33]On 27 June 2011 the defender took the children to live with her in England. This crucial date is a matter of admission by the defender in her pleadings. When did the pursuer apply for his residence order in Scotland? In other words what was the date of the application within the meaning of section 9 (b) of the 1986 Act (jurisdiction on basis of habitual residence within the sheriffdom)?
• [34]The two possibilities are either 14 June 2011 when the pursuer’s minute of amendment was lodged with the court and allowed to be received by Sheriff Ross, or on 19 July 2011 when formal amendment of the pleadings was allowed by Sheriff Kelly. She submitted the former was the “date of the application”. The defender’s agent did not offer any thoughts on this point. He appeared to concede this was the “date of the application”.

   

• [35]As far as I am aware this point has not before been judicially determined in Scotland. It may arise for debate in a future case. Absent any act of sederunt under section 1(6) of the 1986 Act to guide me, it seems to me, on the facts of this case, the date of the application was 14 June 2011: the defender had received notice of the Minute of Amendment (containing the crave for a residence order) by postal intimation dated 13 June 2011; Sheriff Ross had pronounced an interlocutor on 14 June allowing the application to be received by the court.

   

  Section 41 of the Family Law Act 1986

   

• [36]Section 41 of the 1986 Act was enacted on the joint recommendation of the Law Commission (England and Wales) and the Scottish Law Commission (Law com No. 138 and Scot Law Com No. 91). It follows their proposed Clause 40 in the draft bill annexed to their Report. Section 41 is 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.

   

  (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 contravention of an order made by a court in any part of the United  Kingdom.

   

   

  (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) he attains the age of sixteen, 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 and not in contravention of an order made by a court in any part of the United Kingdom.

   

   

• [37]This section shall require some close analysis by me in the light of the relevant circumstances in this case and the submissions made to me by the parties’ agents. But I think it important first of all to reproduce the Law Commissions’ “Explanatory Note” to its draft Clause 40, now section 41.

   

  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 (2)

   

   This subsection defines the circumstances in which subsection (1) is to apply. These arise if the child is removed from or retained outside his habitual residence in contravention of a United Kingdom court order, or without the agreement of all the persons having the right to determine where he is to reside.

   A common example of the latter situation arises where parents have equal custody rights (as is the case where the child was born of their marriage but there is no court order) and one parent takes the child out of the part of the United Kingdom where the child habitually resides, or keeps him outside that part, without the consent of the other.

   

   The wording adopted is designed to ensure that the court of the previous habitual residence retains jurisdiction for one year even if the child is removed or retained whilst outside the United Kingdom when on holiday abroad-and even if, after being removed to one country, he is then removed to a second or third country. It also provides for the possibility that the child himself left, or remained outside, the country of his habitual residence-thus avoiding the need to prove an actual 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

   

• [38]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.

   

• [39]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).

   

• [40]Assuming 27 June 2011 is counted as the first day of the twelve month period, this means the children must be treated as continuing to be habitually resident in Scotland until 26 June 2012 if “circumstances of the kind specified in subsection (2) of section 41 of the 1986 Act apply”. Provided the pursuer made an application for a residence order to this court and “on the date of the application” the children were habitually resident in the sheriffdom, this court exercises jurisdiction to entertain the application for the residence order by virtue of sections 8 and 9 of the Family Law Act 1986.
• [41]In my opinion the defender’s agent misunderstood the meaning and effect of section 41 of the 1986 Act. It does not mean that the Scottish court has jurisdiction for one year and then loses its jurisdiction when the children become habitually resident somewhere else after that year. Nor does it mean the section applies only if the children are removed in contravention of a court order.

   

• [42]The important thing that triggers the application of section 41 is whether the child becomes habitually resident elsewhere “in consequence of circumstances of the kind specified in section 41(2)”.

   

• [43]So it is to those circumstances the court must turn its attention. There are two of them. One is indeed the removal of the child in contravention of a court order: section 41 (2) (b) but that does not apply here.

   

• [44]The other is the removal of the child from Scotland “without the agreement of the person or all the persons having, under the law of [Scotland][10], the right to determine where he is to reside”: section 41(2) (a).

   

• [45]This involves a consideration of three elements:
  1. The agreement of all the persons having the right to determine where the child is to reside must be obtained.

      

  2. The persons holding that right are determined -in this case- “under the law of Scotland”.

      

  3. The persons in question must have the right “to determine where the child is to reside” under the law of Scotland.

      

• [46]It is clear from the Law Commissions’ Explanatory Statement to draft Clause 40 (now section 41 of the 1986 Act) that section 41 was based on articles 3 and 12 of the Hague Child abduction Convention 1980. Article 3 of that Convention defines “wrongful removal or retention” as “in breach of rights of custody attributed to a person” under the law of the territory[11] “in which the child was habitually resident immediately before the removal or retention”.

   

• [47]It is not necessary for me to explore “rights of custody” in Scots law as it suffices in this case that as holder of parental responsibilities and rights the pursuer had the parental right “to have the [children] live with him or otherwise to regulate the [children’s] residence”: Children (Scotland) Act 1995, section 2(1)(a): emphasis added.
• [48]It follows that his agreement was needed for the children’s removal to another part of the United Kingdom and if he did not give his agreement to their removal to Somerset on 27 June 2011, the children are to be treated as continuing to be habitually resident in Scotland until 26 June 2012. If that is the case, this court potentially had jurisdiction to entertain his application for a residence order made on 14 June 2012.

   

  The complication of the supervision requirement

   

• [49]As set out in the Note of Argument for the pursuer number 20 of process, the children’s hearing put in place a supervision requirement regarding the children as a result of the defender’s relationship and marriage to PM who was on the sex offenders’ register. On 21 June 2011 the supervision requirement was altered to state the children would reside with the defender in England.

   

• [50]The pursuer’s position is he was opposed to that supervision requirement. He had been contemplating seeking an interim interdict from the court prohibiting the defender removing the children from Scotland. His then solicitor advised the interdict could not be granted if it conflicted with the supervision requirement.

   

• [51]The defender’s agent submitted the “supervision requirement” therefore “authorised” the removal of the children to Somerset as per the Current Law Statutes annotation to that effect.
• [52]The word “authorises” used in that annotation clearly derives from the Law Commissions’ Explanatory Statement to Clause 40 of its draft bill (now section 41): “This clause 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 reopening custody proceedings in a forum which the person removing the child thinks may be more favourable to him”.

   

• [53]But it is the actual words of the statute I must apply. Section 41(2) of the 1986 Act plainly states that the agreement of all persons having the right to determine where the children are to reside must be obtained for their removal from Scotland for the purposes of that section. So long as children are considered to be in need of compulsory measures of supervision, decisions of the children’s hearing take precedence over court orders and the court ought not to pronounce an order relating to residence or contact in conflict with the supervision requirement.

   

• [54]This does mean the children’s hearing could send the children to England against the pursuer’s wishes. It does not mean the children’s hearing was vested with parental responsibilities and rights. It only means so long as the supervision requirement was in place, the pursuer, who was still vested with parental responsibilities and rights, “could not act in any way which would be incompatible with [the] supervision requirement”: Children (Scotland) Act 1995, section 3(4).
• [55]Accordingly, his failure to apply for interim interdict to prevent the children’s removal from Scotland did not therefore amount to “agreement” to their removal from the jurisdiction.

   

  Did the pursuer agree to the defender removing the children from Scotland?

   

• [56]The pursuer states he did not agree to the children being removed from Scotland. The defender’s agent asserted he did agree in the proceedings before the children’s hearing, but that will not do. It is an agent’s responsibility to adduce evidence of that agreement and he could point to none. So what is left of his submissions the pursuer agreed to the defender removing the children from Scotland on 27 June 2011? I shall go through each of his submissions in turn.

   

  Mr B’s Report

   

• [57]He referred me to Mr B’s Report at 5/8 of process. At pages 4 and 5 of this report, Mr B notes the pursuer as indicating it became obvious to the pursuer following the defender’s move that “the contact arrangements would require to alter. He wished to ensure that his relationship with his daughters continued. He did not seek to prevent Miss K moving. He did however wish to secure residential contact during holiday periods”.
• [58]Mr B’s Report postdates the defender removing the children. It does not have a date on it and the court stamp is not fully legible. Mr B was appointed on 24 November 2011 and on 1 March 2012 the court continued consideration of the action “for production of the bar report previously ordered”. As the court made an interim contact order in favour of the pursuer on 8 March 2012, it is likely Mr B lodged his report around that time.

   

• [59]The agreement to which section 41(2) (a) refers is agreement to the removal from Scotland, not subsequent agreement to the children remaining outwith the jurisdiction. This remark therefore does not constitute “agreement” within the contemplation of section 41(2)(a) of the 1986 Act.

   

  The proceedings before the children’s hearing

   

• [60]He also noted the pursuer had not sought to appeal the terms of the supervision requirement that the children reside with the defender in England[12]. He suggested the pursuer had given his consent to the social workers that the children relocate, but did not point to any document supporting this assertion.

   

• [61]I do not consider failing to appeal to the sheriff under section 51 of the Children (Scotland) Act 1995 infers agreement to the children leaving Scotland.
• [62]This would have been a failure prior to the children leaving Scotland. It may be part of an argument based on acquiescence but it does not mean that a person agrees with a decision made by a children’s hearing. And as already noted the defender’s agent did not point to any document supporting such agreement by the pursuer or seek to adduce any evidence that he did so agree.

   

• [63]The purpose of section 41 of the 1986 Act is to prevent children’s habitual residence being changed without the agreement of all persons having the right to determine where the children are to reside. This implies some positive act of consent on the part of the other person concerned, not merely failure to exercise a right of appeal against the terms of a supervision requirement.

   

• [64]A person who seeks to change children’s habitual residence “without the agreement” of others who have the right to determine where the children is to live ought in my opinion to have the burden of proving such agreement, in order to deter unlawful removals or retentions from one jurisdiction to another. I do not think the defender has met that burden.

   

  Email of 25 August 2011

• [65]This stated that the pursuer “did not wish 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”.
• [66]This again may be an argument based on acquiescence, but it lacks the character of positive consent to the children’s removal to or retention in England.

   

  Letter dated 14 June 2011, Dr S’s letter dated 29^th February 2012 and the Report on Investigation of Complaint dated 27 July 2011

   

• [67]The defender’s “Note of Argument” suggests these three documents, numbers 5/6, 5/12 and 5/14 of process respectively “all show that the pursuer was well aware of the defender’s proposed move prior to her actually making the move [27 June 2011]”.

   

• [68]The letter informed the pursuer the defender intended to move “once the social work involvement is at an end”. It invited the pursuer’s proposals anent contact with the children.

   

• [69]Dr S’s letter explained why the defender could not attend court in Scotland on that occasion.

   

• [70]The Report on the investigation into the pursuer’s complaint against the Social Work Department discloses the pursuer was aware of the defender’s plans to move on 28 June 2011(sic).

   

• [71]These letters and report do not establish the pursuer’s agreement to the children relocating. The pursuer was helpless to avoid their removal once the children’s hearing altered the supervision requirement on 21 June 2011 with a condition of residence in England.

   

  Conclusion in relation to sections 41(1) and (2)

   

• [72]The defender has not shown any agreement on the part of the pursuer to the children being removed on 27 June 2011. She has not adduced any argument or evidence to support such a contention. The children were therefore deemed habitually resident in Scotland on 14 June 2012, the date of the pursuer’s application for a residence order, for the purposes of sections 41(1) and (2) of the 1986 Act.

   

  Does section 41(3) apply in this case?

   

• [73]I did not hear any argument on this point. As the Law Commissions’ Explanatory Statement to Clause 40 of their draft bill makes clear subsections 1 and 2 are to the same effect as Articles 3 and 12 of The Hague Child Abduction Convention.

   

• [74]Section 41(3) “covers two circumstances in which subsection (1) would become inapplicable within the one year period”. The first does not apply in this case because the children are still under 16. “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…Case(b) only applies where the removal or retention is not in contravention of a court order”.

   

• [75]This presumably is based to an extent on Article 13 (a) of The Hague Child Abduction Convention whereby the child is not ordered returned if the person whose custody rights were breached “consented to or subsequently acquiesced in the removal or retention”.

   

• [76]Section 41(3) (a) refers to the children becoming habitually resident outside Scotland “with the agreement of the person or persons mentioned in section (2) (a) above” (and not in contravention of a court order, but that does not apply in this case). It differs from Article 13 (a) it that refers to “agreement” only whereas Article 13(a) refers both to “consent” and “subsequent acquiescence”.

   

• [77]I did not hear any submissions on section 41(3). The only adminicle of evidence conceivably relevant to it is the statement attributed to the pursuer in Mr B’s Report. I must reserve judgment as to whether this relates to “agreement” as referred to in section 41(3) (a).

   

   

   

  How might this court determine whether section 41(3) applies in this case?

   

• [78]I have ordered the parties’ agents to make further submissions to me on this point at a hearing on 27 December 2012.

   

  Forum non conveniens

   

• [79]I understand the High Court of England and Wales will consider the question of the jurisdiction of the courts of England and Wales to entertain the defender’s application for a residence order in respect of the children at a hearing in Taunton on 21 December 2012. I am mindful of the possibility of the courts in our two jurisdictions reaching decisions that might result in a conflict of jurisdiction in regard to the making of residence orders in respect of the children.

   

• [80]As I see it from the perspective of Scots law, one of three things might happen. Firstly, this court will assume jurisdiction and the High Court of England and Wales will not assume jurisdiction, in which case there will be no conflict of jurisdiction as between Scotland and England and Wales. However, this still allows this court to sist(stay) proceedings in favour of England and Wales under section 14 (2) (a) or (b) of the 1986 Act, if so minded; in particular if it considers the forum of England and Wales more “appropriate”. This court would be bound by the guidance of the Inner House of the Court of Session in B v B 2009 SC 58 in reaching that decision.
• [81]Secondly, this court decides that section 41(3) of the 1986 Act applies. In that case, this court will not have jurisdiction to make a residence order in respect of the children. In that event, even if the children had not become habitually resident in England and Wales, they would have lost their Scottish habitual residence.

   

• [82]Thus in that event, the children would not be habitually resident anywhere in the United Kingdom and the courts of England and Wales would exercise jurisdiction on the basis of their presence in England and Wales. There would be no conflict of jurisdiction.

   

• [83]Thirdly, both this court might assume jurisdiction under the law of Scotland if it holds section 41(3) does not apply and the High Court of England and Wales might assume jurisdiction under the law of England and Wales. Only in that event would there be a conflict of jurisdiction. Such a conflict could be resolved only by either this court or the High Court sisting or staying proceedings in favour of the other, to avoid conflicting proceedings and judgments in the two jurisdictions.

   

• [84]In that event I would invite submissions from parties’ agents on remitting this aspect of the action to the Court of Session as outlined above in order that such decisions may be made by a more senior judge in Scotland, if necessary in consultation with his or her counterpart in England and Wales[13]. I will reserve consideration of whether this court should sist proceedings in favour of England and Wales until I have decided whether section 41(3) of the 1986 Act applies in this case. The question will not arise if this court does not have jurisdiction.

 

NOTE: This Judgment has been edited. Its two sequels are also reported on an edited basis.