This is an ongoing case we are well aware of in that a West African woman comes to Scotland and marries a Scotsman . Then leaves abducting the child to England were she gets full legal aid ,lawyers and barristers and a council house having NEVER paid a penny into the British tax system. Her legal bill would be in excess of £100,000 and rising .

The father meanwhile has NOT seen his child for 8 years or more and has been paying substantial moneys through the courts in Scotland and England to gain access to his child . He has been a British citizen who had throughout his life paid his way, yet does NOT get assistance with his case in any shape or form and shows the EXTREME bias against fathers in the UK legal jurisdiction as the legal mafia bend over backwards to accomodate this woman bleeding the UK for what its worth.

The judicial mob in both England and Scotland have completely ignored the childs and fathers rights instead taking EXTREME measures to ignore the laws that protect a child in Scotland. Our group have VAST experience of how this mob who have been party to the Lockerbie bombing decision ignore the law and make it up as they go along dependent on HOW much money can be generated from the endless legal aid money pot and the vested interests of the lawyers that have got themselves involved in this case to totally undermine the rights of the father and child and the theft by the mother to another country without jurisdiction.

From Scolag September 2009

Bairns and Borders

Alan Inglis addresses problems with the Family Law Act 1986

This article considers the implications of the conflicting decisions of the Court of Appeal and its Scottish equivalent on which Court had jurisdiction to consider the future of the same child, R, within the context of the same UK wide statute, the Family Law Act 1986. In B v B {2004] 2 FLR 741 a Court of Appeal consisting of Wall and Arden LJJ held that the law of England and Wales applied, while in RAB v MIB [2008] CSIH 52, the Inner House of the Court of Session comprised of Lord Eassie, Lady Paton and Lord Mackay of Drumadoon came to the contrary conclusion. Ironically, it is a conclusion described by Wall LJ as “virtually unarguable” at 743 para 3.

The Law S 41 Family Law Act provides: “(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 consequences 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 the circumstances arise.
(2) The circumstances referred to in subsection (1) above exist where he is removed from or retained outside, or himself leaves and 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 of 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.

The English Proceedings

The essential facts of the case can be shortly stated. Mr and Mrs B were married and lived in Aberdeen. Their daughter R was born on 5th August 1997. Under the laws of both countries both parents of a child born within a marriage have parental responsibility for her. In September 2000 Mrs B left the matrimonial home and abducted R to London. Mr B had no forewarning of this move and did not consent then or at any stage thereafter to his daughter living in England. Mrs B then applied to Willesden County Court where on 29th November 2000, she obtained an ex parte Residence Order and an Order prohibiting Mr B from removing R from her care. The Order contained no return date but gave Mr B liberty to apply. In subsequent hearings it was accepted by both parties that there was no jurisdiction to make that Order because of the provisions of s 41 Family Law Act 1986.

It is beyond doubt that had Mrs B’s representative been aware of this provision and complied with his or her professional duties at ex parte hearings the first Order would never have been made and eight years of publically funded litigation in both jurisdictions would have been avoided.

Mr B did not participate in the proceedings in Willesden until 1st November 2001 when he applied for residence and contact orders. He later applied (in person) to the High Court under the Child Abduction and Custody Act 1985. The Originating Summons was dismissed by Johnson J on the grounds that “since the expiration of one year, R’s habitual residence has come to be in England”. This misunderstanding of s 41 FLA came to be accepted by all the English judges having conduct of the case. The proceedings then continued in the Willesden County Court until Mr B issued in the High Court an application in April 2003 for an Order “that all previous orders made in proceedings in England concerning R and to transfer further hearings to Scotland”. This came before Sumner J who dismissed it. The Father appealed to the Court of Appeal. Here his appeal was dismissed. The Court of Appeal giving the following reasons:

1. “All section 41 does is to treat a child in R’s situation as habitually resident in Scotland for the period of one year from the date of her wrongful removal in order to ensure that the Scottish Court retains jurisdiction over any proceedings instituted within that year”; para 65 at 758

2. “On the facts of this case section 41 ceased to have effect in September 2001”; par 70 at 759

3. “... although made without jurisdiction, the Order (of 29th November 2000) was not a nullity. The normal rule about orders, which on their face are regular, but which are in fact made without jurisdiction is that they remain in force until they are discharged see Hadkinson v Hadkinson [1952] P 285” para 68 at 758

The Scottish Proceedings

On 27th January 2003, Mr B entered a writ of divorce in the Aberdeen Sheriff Court relying upon the fact that he was domiciled in that jurisdiction. He sought orders for residence and contact within that action. In July of that year the Sheriff, having been advised that the English proceedings were reaching a conclusion sisted (stayed) the action to await their outcome.

Mr B’s appeals against this determination were dismissed firstly by the Sheriff Principal and then the Inner House of the Court of Session. Following the decision of the Court of Appeal he enrolled a motion to recall the sist. This was not opposed by Mrs B because there was unquestionably jurisdiction in Scotland to dissolve the marriage. She, however argued that Scotland was forum non conveniens because of the Orders which had been made in England and the presence of witnesses there. She was successful before the Sheriff and the Sheriff Principal. Mr B appealed to the Inner House.

The Inner House’s decision is directly in conflict of that of the Court of Appeal. Although delivered with the modulated courtesy which is the hallmark of the Senators of the College of Justice, it is clear that they found the reasoning of the Court of Appeal incomprehensible. They:

1. Noted that the Order which initiated the proceedings in England was made without jurisdiction;
2. Agreed that the habitual residence of a child of a marriage cannot be changed without the consent of both parents;
3. Doubted that the effect of s 41 FLA 1986 was automatically to change habitual residence one year after an abduction;
4. Recorded the failure of the English Courts to hold a welfare hearing in the six years that the matter was before them, despite a CAFCASS officer’s recommendation that this was necessary;
5. Accepted that “the Court of Appeal considers that the English courts have jurisdiction to make orders respecting the child with which this divorce action is concerned”.
6. Held that “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 the 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 and 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.”
7. Remitted to the divorce action to the Sheriff including the craves for residence and contact.

Analysis

These decisions appear flatly to contradict each other. It is submitted that the reasoning of the Inner House is to be preferred to that of the Court of Appeal for three reasons. Firstly, although the Court of Appeal correctly noted at par 11, that the effect of SS 1,2, and 3 FLA 1986 is that a court in England and Wales only has jurisdiction over a child who is habitually resident in England and Wales. The Court misunderstood the effect of s 41 on that principle.

41 FLA provides that “where a child .. becomes habitually resident outside that part of the United Kingdom ... he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom period of one year beginning with the date under which the circumstances arose.” (my emphasis). The section therefore applies only where the child has already become habitually resident in another part of the UK, and operates to postpone the legal effect of that habitual residence for a period of one year. Correctly construed, it does not operate as a time limit of one year on habitual residence as held by the Court of Appeal. The subsection thus requires the court to consider the primary issue of whether the child has become habitually resident outside the relevant part of the United Kingdom before determining whether the one year exception applies. The Court of Appeal did not do this.

Secondly and following from the above, it is axiomatic that habitual residence cannot be changed by the unilateral action of a parent who shares parental responsibility with another. Re J [1990] 2 AC 562; Re M [1993] 1 FLR 495; Re B [1994] 2FLR 915; Re A [1995] 1 FLR 767; D v D [1996] 1 FLR 574; Re M [1996] 1 FLR 887; B v H [2002] 1 FLR 388; Re P-J [2009] EWCA Civ 588. This is also the law in Scotland. Dickson v Dickson 1990 SCLR 692. Indeed as the Inner House recorded, Re B appears to be the only case in either jurisdiction in which this principle was not applied.

It follows from the above that, as Mr B never consented to R’s removal to England she never became habitually resident there and the English Courts never had jurisdiction over her. Thirdly, Hadkinson, is not an authority for the proposition, claimed for it by Wall and Arden LJJ that it rendered the Order of 29th November 2000 valid notwithstanding that it was made without jurisdiction. Hadkinson was a case concerning whether an appellant could be heard in the Court of Appeal on an appeal against an order in which she was in continuing contempt. The Order itself was one made in divorce proceedings requiring her to return the child of the family to the jurisdiction after she had abducted him. There was no question raised against the validity of that order. The ratio of the case is that there is an “unqualified obligation of every person against whom an order has been made by a court of competent jurisdiction to obey it unless and until it is discharged”. In Re B the proceedings in which every subsequent order was made where founded upon those of a court which was not of competent jurisdiction. Hadksinson cannot be employed to give a court jurisdiction to make orders which a statute denies it.

The applicable principle is to be found in Halsbury (4th edition) at 10:314, “where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing”.

Brussells II bis

A further twist in these proceedings comes with Brussels II bis which came into force on 1st March 2005. It is directly applicable and supersedes any domestic legislation to contrary effect. Currently it is the United Kingdom as a whole which is a Member State rather than each of its constituent elements. Art 66 deals with “Member States with two or more legal sys- tems” of which only the United Kingdom is identified. It provides: “With regard to a Member State in which two or more systems of law or sets of rule concerning matters governed by this Regulation apply in different territorial units:

(a) Any reference to habitual residence shall refer to habitual residence in a territorial unit;
(b) Any reference to nationality, or in the case of the United Kingdom domicile, shall refer to the territorial unit designated by that state;
(c) Any reference to the authority of the Member States shall refer to the authority of a territorial unit within that state which is concerned;
(d) Any reference to the rule of the requested state shall refer to the rules of the territorial unit in which jurisdiction, recognition or enforcement is invoked.”

The effect of Art 66 (c) therefore is that the provisions of the regulation apply as between England and Wales, and Scotland as if they were individual member states. Art 8 provides that the courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the courts is seised.

Art. 10 deals with “Jurisdiction in cases of child abduction” and provides that: “In the case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrong- ful removal or retention shall retain their jurisdiction until the child has acquired habitual residence in another Member State”

There are exceptions arising where “the child has resided in another Member State for at least one year after the person with rights of custody has had or should have had knowledge of the whereabouts of the child, the child is settled and one of the following conditions is satisfied (i) no request for return has been lodged before the competent authorities of the Member State where the child has been removed or retained; (ii) the requested was lodged and withdrawn; (iii) a case before a Court in the Member state of habitual residence has been closed for want of jurisdiction; (iv) a court in which the child was habitually resident has decided that the child should not be returned. It does not appear that the effect of Brussels II bis was drawn to the attention of the Inner House although it was in force at the date of the hearing.

The effect of Brussels II bis on the English proceedings would have been that the District Judge in the Willesden County Court should still have declined jurisdiction. Mr B had notice of the general whereabouts of R when served with that Order on 8th December 2000. He applied for a Residence Order 1st November 2001 and therefore did so within a year of having notice of R’s whereabouts. Scotland therefore would therefore have retained jurisdiction. The Court of Appeal decision would therefore remain wrong under the new law.

* Alan Inglis is an Advocate Arnot Manderson Advocates, Edinburgh, and Barrister in Coram Chambers, London

SOURCE