Scottish courts asserting themselves

RAB v MIB (9th September 2008, [2008] CSIH 52 is an important decision on jurisdiction in family law matters and has seen the Inner House of the Court of Session reverse earlier sheriff court decisions that had seemed to cede jurisdiction to England. 

In 1996 the B couple married in Abu Dhabi.  They had one child in 1997.  The child had Down’s syndrome.  The couple separated in 2000.  From 1997 they had lived in Aberdeen but in September 2000 MIB left Aberdeen for London taking the child.  RAB did not consent to the child’s removal and had been unaware of plans to remove the child being in place.

Two months after arrival in London MIB was awarded a county court order preventing anyone from removing the child from MIB’s care.  This order was granted with RAB receiving no notice of the hearing. And it was granted without jurisdiction (a position unchallenged by the English Court of Appeal) as s 41 of the Family Law Act 1986 required one year’s habitual residence to found jurisdiction.  RAB unsuccessfully attempted to challenge the court order in the English courts (the Court of Appeal decision is reported at [2004] 2 FLR 741) despite the lack of any substantive hearing on the welfare of the child.

Meanwhile an action of divorce, with craves for contact, had been raised in the sheriff court in Aberdeen, and the defender pleaded forum non conveniens based on the hearings in England.  The plea was upheld by the sheriff and sheriff principal – partly taking into account circumstances of convenience to the defender and witnesses who could speak to the child’s welfare given MIB’s residence in London.

ON appeal to the Inner House RAB was a party litigant.  During argument reference was made to the English case of Spiliada Maritime Corporation v Cansulex Limited [1987] 1AC 460, a decision on forum non conveniens based largely on Scottish principles (see AE Anton with PR Beaumont, Private International Law (2nd edn, 1990) pp 213 – 215).

At p 474 of Spiliada Lord Goff said,

“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. … 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’”

The Inner House held that the sheriff court in Aberdeen was the appropriate forum for divorce, and accordingly given the responsibility of the court to take into account the welfare of the children of the marriage prior to the grant of decree of divorce, and the lack of a hearing on the child’s welfare in England, then Aberdeen was the appropriate forum (para 27).  As for the argument on convenience to witnesses this is summarily dismissed at para 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.”

As well as the jurisdictional issue Jonathan Mitchell QC on his blog noted one other topic.  He pointed out that the anonymised decision in the Inner House contrasted with sheriff court decisions published with the names of the parties.  Mr Mitchell draws attention to Practice Note, no. 2 of 2007, ‘Anonymising Opinions Published on the Internet‘, which came into force on 20 July 2007, and points out that –

“Strangely, this is not published anywhere on the Scottish Courts website, which inexplicably gives a completely different practice note as being no. 2 of 2007, but it is published in the Parliament House Book at C2063.”

but notes that there are no similar statements of policy for anonymity in sheriff court cases.