B e f o r e :
THE PRESIDENT
LORD JUSTICE STUART-SMITH
and
LORD JUSTICE MANN
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)
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MR. PETER SINGER QC and MISS DIANE REDGRAVE (instructed by
Messrs. Sampson Parker, London, SW18) appeared on behalf of the Appellant/Appellant.
MR. NICHOLAS WALL QC and MR. JOHN ZIELER (instructed by Messrs. Vizards, London, WC1) appeared on behalf of the Respondent/ Respondent.
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HTML VERSION OF JUDGMENT
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THE PRESIDENT: This is an interesting point raised in an appeal from a decision of Mrs. Justice Bracewell made on 21st December 1990. The appeal concerns an application to enforce in this jurisdiction an order for interim custody of three children made by the Scottish High Court under the provisions of the Family Law Act 1986.
The court has been assisted by two excellent skeleton arguments and by the oral arguments of leading counsel both for the appellant and the respondent.
The appellant and the respondent are, respectively, husband and wife. They were married in 1982 in London. They are both in fact of Scottish decent, but at all material times have made their home in London. In August 1990 year, the wife left the husband and took with her the three children of the family to Scotland from whence she had originally come. She thereupon took divorce proceedings in Scotland. Having raised, I think that is the appropriate term, a divorce action in Scotland, she sought and was granted the interim custody of the three children on 12th October 1990 by a Scottish High Court judge.
The hearing on 12th October 1990 was in fact "ex parte", but there were subsequent hearings which were "inter partes". The application before Mrs. Justice Bracewell was an application to enforce in the English jurisdiction the interim custody order made in Scotland on 12th October 1990. The Family Law Act 1986 provides, inter alia, for the recognition and enforcement of custody orders made by courts in various parts of the United Kingdom and, in particular, in relation to Scotland, section 27 provides for an order made in Scotland to be registered in England. That is an administrative procedure and registration will be effected upon compliance with certain procedural steps involved in the lodging of relevant documents. Having been registered, section 29 provides as follows:
"(1) Where a custody order has been registered under section 27 of this Act, the court in which it is registered shall have the same powers for the purpose of enforcing the order as it would have if it had itself made the order and had jurisdiction to make it; and proceedings for or with respect to enforcement may be taken accordingly."
Section 30 of the Family Law Act 1986 provides:
(1) Where in accordance with section 29 of this Act proceedings are taken in any court for the enforcement of an order registered in that court, any person who appears to the court to have an interest in the matter may apply for the proceedings to be stayed or sisted on the ground that he has taken or intends to take other proceedings (in the United Kingdom or elsewhere) as a result of which the order may cease to have effect, or may have a different effect, in the part of the United Kingdom in which it is registered.
(2) If after considering an application under subsection (1) above the court considers that the proceedings for enforcement should be stayed or sisted in order that other proceedings may be taken or concluded, it shall stay or sist the proceedings for enforcement accordingly."
The two summonses before the learned judge on 21st December 1990 were, firstly, a summons issued by the mother, who is the respondent to this appeal, seeking the enforcement of the interim custody order made in her favour on 12th October 1990 in Scotland and subsequently duly registered in this jurisdiction pursuant to section 27 of the Family Law Act 1986, and secondly, a summons issued by the father, who is the appellant in this court, seeking an order under section 30 of the Family Law Act 1986 that the enforcement proceedings initiated by the mother should be stayed in order that other proceedings, which were in effect divorce proceedings, including an application for custody of the children might proceed in this jurisdiction.
On 7th December 1990, the husband, the father of the children, filed a petition for dissolution of his marriage in this jurisdiction. On 21st December, as I understand it, shortly before the hearing before Mrs. Justice Bracewell the petition was duly served upon the wife, the mother of these children. So, at the time that the two summonses came before the learned judge on 21st December 1990, there was on the file a divorce petition issued by the father which included a prayer for the custody, care and control of the three children of the family.
By operation of the Domicile and Matrimonial Proceedings Act 1973, the effect of these proceedings having been commenced in this jurisdiction to dissolve the marriage was to cause the wife's divorce proceedings pending in Scotland to be sisted or stayed. The third schedule to the Domicile and Matrimonial Proceedings Act 1973 provides by paragraph 8:
"Where before the beginning of the proof in any action for divorce which is continuing in the Court of Session it appears to the Court on the application of a party to the marriage -
(a) that in respect of the same marriage proceedings for divorce or nullity of marriage are continuing in a related jurisdiction; and
(b) that the parties to the marriage have resided together after the marriage was contracted; and
(c) that the place where they resided together when the action in the Court was begun or, if they did not then reside together, where they last resided together before the date on which action was begun is in that jurisdiction; and
(d) that either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they had last resided together before the date on which that action was begun;
it shall be the duty of the Court, .... to sist the action before it."
In this case before the hearing of the divorce suit in Scotland, which is the English term for "proof" in the schedule, proceedings for divorce had been commenced in England. These two parties had in fact last resided together in England and their habitual place of residence had been in England, so the requirements of paragraph 8 of the Domicile and Matrimonial Proceedings Act 1973 were fulfilled. As a result the High Court in Scotland duly sisted or stayed the matrimonial proceedings in Scotland.
A further effect of the provisions contained in the third schedule to the Domicile and Matrimonial Proceedings Act 1973 is to cause the stayed or sisted order in Scotland to cease to have effect on the expiration of the period of three months beginning with the date on which the sist comes into operation.
In this case the relevant three months will expire on 21st March 1991. The combined effect of these provisions of the schedule is to continue the custody order in force for a period of three months following the staying of the proceedings. At the end of the three months it will cease to have effect, unless an application is made under prescribed emergency circumstances for it to be continued. In due course there will be a hearing between these two parties in this jurisdiction including contested applications for custody, care and control of the three children of the marriage. Indeed, I am told that already the customary preliminary conciliation appointment has been made for 8th February.
The learned judge was invited by counsel on behalf of the father to refrain from ordering the enforcement of the duly registered interim custody order made by the Scottish court and to stay its enforcement. The learned judge had before her the details of the various steps taken before the Scottish courts. She also had before her certain of the relevant material placed before the Scottish courts, including the report of the Reporter, Miss Raeburn, a Scottish advocate. She heard the submissions of counsel on behalf of the mother and on behalf of the father.
In the short judgment which she gave, she briefly set out the chronology and she concluded her judgment in these terms:
"I have heard argument and read the relevant documents ... and the welfare report and exercising my discretion I see no reason not to enforce the order of the Scottish court ... the children should be handed over to the mother by the father on Sunday 23rd December .....".
She made conditions as to the circumstances of the handing over.
The father immediately sought to appeal against that order and the Court of Appeal ordered the early hearing of the appeal. Hence it has come before this court today.
On behalf of the appellant father, Mr. Singer Q.C. submits that the learned judge ought not to have ordered the enforcement of the Scottish interim custody order, rather she should have stayed it, having regard to the fact that the effective jurisdiction of the family disputes between these parties is now to be transferred to England and that accordingly the Scottish interim custody order could only have what might be termed a transitional effect, for it was bound by operation of the statute to come to an end on 21st March 1990 at the end of the statutory three-month period.
Mr. Singer further argued that the welfare of the children required the judge to consider the interim position with regard to where the children should reside and who should have their care and control. Mr. Singer submitted that although the judge did not have before her in any formal sense an application for the interim custody of these children, nevertheless, he submits, she should have taken it upon herself to exercise what he terms an impressionistic discretion and ordered that the children, who were at this time in the care of the father in England, should remain with him, pending the hearing of a custody application in this jurisdiction. Mr. Singer argues that there was material before the judge which would have entitled her to make such an order and furthermore which should have led her to make such an order. In particular he says there was material which showed that the father was looking after the children in a satisfactory way and that although disputed allegations between the parties had been before the Scottish courts, there was nothing which ought to have persuaded the judge to allow the children to go back to Scotland, which was not their normal home.
The children are 9, 8 and 3 years old respectively. Mr. Singer submits that Mrs. Justice Bracewell should have made what would in effect amount to an interim custody order in favour of the father. He also argues that the learned judge failed properly to exercise her discretion. She did not address herself, he submits, to the appropriate issues. She should have considered primarily the welfare of the children and the material before her should have led her to conclude that the children should remain with the father.
Mr. Wall Q.C., on behalf of the wife respondent, first of all, drew attention to the terms of section 25(1) of the Family Law Act 1986 which provides:
"Where a custody order made by a court in any part of the United Kingdom is in force with respect to a child who has not attained the age of sixteen, then,
..... [he underlines the following three lines] the
order shall be recognised in any other part of the United Kingdom as having the same effect in that other part as if it had been made by the appropriate court in that other part and as if that court had jurisdiction to make it."
Sections 27 and 29 of the Act implement that provision. Mr. Wall submits that in considering a matter of this nature, a court is bound to have regard to the principle of comity. The court must not in effect purport to act as a court of appeal from a court having jurisdiction in another part of the United Kingdom: in this case Scotland. Mr. Wall submits that in this case there had in fact been no fewer than five hearings before Scottish High Court judges concerning the issue of the interim custody of these children. In fact the Scottish courts had declined to vary the order made on 12th October 1990 and had further refused leave to appeal against the effect of that order within the Scottish jurisdiction. Mr. Wall submits that the learned judge on 21st December in England could not have questioned the decision of the Scottish courts.
Certain criticisms have been made as to the way in which certain material was apparently placed before the Scottish courts, but in my judgment Mr. Wall is correct in contending that the English judge could not question the correctness of the procedures and orders of the Scottish courts in this matter, more particularly since leave to appeal in Scotland had been refused.
Mr. Wall submits this was a perfectly valid order, properly registered in this country, and that having regard to the ordinary principles of comity, unless there were present matters of a wholly unusual nature, the normal procedure should lead to enforcement being ordered in keeping with the terms of sections 25, 27 and 29. He contends that it was not open to Mrs. Justice Bracewell to hear what would in effect have amounted to an interim custody application on 21st December. In due course no doubt such an application will be heard. In point of fact because this present order has effect only until 21st March it is likely to be heard quite soon. It is a matter which can be proceeded with in a very short space of time.
I have no hesitation in saying that Mrs. Justice Bracewell correctly exercised her discretion in this case. She was quite right not to be drawn into hearing what would have amounted to an interim custody application, and which would in effect have sought to vary the effective order of the Scottish court.
I would dismiss this appeal.
LORD JUSTICE STUART-SMITH: I agree.
LORD JUSTICE MANN: I also agree.
(Appeal dismissed. Legal aid taxation to both parties)
