Scottish Court of Session

http://www.scotcourts.gov.uk/opinions/2006CSOH194.html

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 194


OPINION OF LORD GLENNIE

in the cause

N S A

Pursuer;

against

M A or N

Defender:


­­­­­­­­­­­­­­­­­________________



Pursuer: Scott; Russel & Aitken
Defender: Absent
15 December 2006

Introduction

[1] The pursuer and the defender were married in Lahore, Pakistan on 20 December 2001. It was an arranged marriage. The formal Rukshati, or sending off the bride, took place on 13 July 2002. Thereafter they moved to live in Scotland. They lived with the pursuer's parents at Bilston, Edinburgh. The pursuer is in regular employment in Scotland as a software engineer. While she was in Edinburgh, the defender attended a University. Their child M was born on 25 May 2004. He is now about 21/2 years old.

[2] In June 2005 the defender, with the consent of the pursuer, took M to see her family in Pakistan. She was due to return home on 18 August 2005. Having twice changed her travel arrangements, the defender did not return to Scotland. She is presently in Pakistan with M. The pursuer has not consented to her keeping M in Pakistan. He has attempted to persuade the defender to return to Scotland to live with him and to bring the child back to Scotland. Those attempts have so far been unsuccessful.

[3] The Summons in this action was signetted on 8 May 2006. In that Summons the pursuer concludes for an order ordaining the defender to return M to Scotland, for a residence order providing that M should reside with him, for an order for delivery of M into his care and control, and for interdict prohibiting the defender from removing M from his care and control or from Scotland. On 8 May 2006 Lady Smith made an interim Order (1) finding and declaring that M was born in Edinburgh and is, prima facie, habitually resident in Scotland and (2) ordaining the defender to return M to Scotland. Despite this, the defender has not returned M to Scotland. Nor has she returned.

[4] That Order and the Summons were both served on the defender in Pakistan on 13 July 2006. I am told that the reason for the delay in service was that the pursuer remained hopeful of persuading the defender to bring M back to Scotland voluntarily; and was concerned lest her knowledge that he had commenced legal proceedings in Scotland should jeopardise the prospects of an amicable resolution of the problem. Be that as it may, this delay in affecting service, though regrettable, does not render that service in any way defective. Service was acknowledged by the defender's lawyers in Pakistan. Furthermore, it is clear from letters which the defender has written to the court, as well as from proceedings which the defender herself has instituted in Pakistan, that the defender is fully aware of the proceedings in Scotland. Nonetheless, she has not entered appearance or lodged defences to the action. The action therefore proceeds formally as an undefended action. However, in any case concerning children, the court will be anxious to take into account the material presented by both parties, even if one of them has not entered the process and, as a result, his or her concerns are presented informally.

Is the defender's retention of the child in Pakistan wrongful?
(i) section 2(3) and (6) of the Children (Scotland) Act 1995

[5] In the Summons the pursuer contends that the defender's retention of M in Pakistan is wrongful having regard to the terms of section 2(3) and (6) of the Children (Scotland) Act 1995. Section 2(3) provides as follows:
"Without prejudice to any Court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below".
Subsection (6) provides as follows:
"The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child's parents are persons so described, the consent required for his removal or retention shall be that of them both".
The relevant paragraphs of subsection (1) mention the right to have the child living with him or otherwise to regulate the child's residence and to maintain personal relations and direct contact with the child on a regular basis. It is clear that both parents, i.e. both the pursuer and the defender, have such rights and, until the defender refused to return M from Pakistan, were exercising such rights.

[6] It follows that, subject to the question of whether the child is "habitually resident" in Scotland, the defender is not entitled to retain M outwith the United Kingdom without the consent of the pursuer.

(ii) the meaning of "habitual residence"

[7] The meaning of "habitual residence" was considered by the Inner House in Dickson v Dickson 1990 S.C.L.R. 692. That was a decision as to the meaning of those words in the context of the Child Abduction and Custody Act 1985, but I see no reason for thinking that a different meaning should be given to those words under the Children (Scotland) Act 1995. The Opinion of the Court was delivered by the Lord President. At page 703, he considered what was meant by the expression "habitual residence". He said this:
"It is enough to say that in our opinion a habitual residence is one which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time. ... 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 the 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".
Applying that guidance, as I must, the position in the present case is as follows. The pursuer was living in Scotland before his marriage. After his marriage, he and the defender both moved to Scotland. The pursuer resumed his employment and the defender enrolled at a university course. It was, at the time of their marriage, their intention to live in Scotland. That this is so is confirmed by item 20 of the parties' Marriage Certificate, which contains a question as to whether any agreement has been reached regarding the guarantee and provision of food, clothing, etc. The answer given was: "This has to be in accordance with the British Law". That, no doubt, was because the parties intended to settle in Britain for some time at least. Given that the pursuer lived in Scotland, I can infer that the answer to question 20 reflected their joint intention to live in Scotland after the marriage. This is what they did. M was born in Edinburgh while the parties were living in Scotland. While they were all living together in Scotland, they all had the same habitual residence, namely, Scotland. The defender could not change M's habitual residence simply by bringing him to or keeping him in Pakistan. As it was put in Dickson v Dickson: "The child's habitual residence cannot be changed by one parent only unless the other consents to the change".

[8] I am therefore satisfied that M was at the time he left Scotland, and still is, habitually resident in Scotland.

[9] It follows, and I so find, that in keeping M in Pakistan without the consent of the pursuer, the defender is acting contrary to section 2(3) of the Children (Scotland) Act 1995.

The welfare of the child - s.11 Children (Scotland) Act 1995[10] The fact that the defender is holding M in Pakistan contrary to the provisions of section 2(3) of the Act does not, of course, mean that the pursuer is entitled as of right to the Orders sought in the Summons. The power of the court to make an Order in relation to parental responsibilities, including a residence Order, is contained in section 11 of the Children (Scotland) Act 1995. Section 11(7) emphasises that, in considering whether or not to make an Order of that sort, and what Order to make, the Court:
"(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all".
This is an obligation imposed on the court which the court takes seriously. Any Order made, indeed any decision whether or not to make an Order, has to be made with a view to the child's welfare.

The UK-Pakistan Judicial Protocol on Children Matters[11] I should, at this stage, refer to the UK-Pakistan Judicial Protocol on Children Matters agreed in January 2003 between the President of the Family Division in England and Wales and the Hon. Chief Justice of Pakistan, each in consultation with members of the Family Judiciary of the UK and of the Islamic Republic of Pakistan respectively. This Protocol has been supplemented by Supplemental Judicial Guidelines on UK-Pakistan Protocol agreed in Islamabad in September 2003, to which Lady Smith has put her name on behalf of the Judges of the Supreme Court of Scotland. Although the Protocol does not have the force of law, nonetheless it represents an attempt by the judiciaries of United Kingdom and Pakistan to co-operate in matters concerning the welfare of children and, in particular, in trying to protect children from the harmful effects of wrongful removal from one country to the other.

[12] Paragraph 1 of the Protocol states that:
"In normal circumstances the welfare of a child is best determined by the courts of the country of the child's habitual/ordinary residence".

[13] Paragraph 5 of the Protocol provides as follows:
"In cases where the habitual/ordinary residence of the child is in dispute the Court to which an application is made should decide the issue of habitual/ordinary residence before making any decision on the return or the general welfare of the child, and upon determination of the preliminary issue as to habitual/ordinary residence should then apply the general principles set out above".

[14] This is an important provision. I have already found that M is habitually resident in Scotland. That finding is consistent with the interim finding by Lady Smith on 8 May 2006.

[15] On that basis, the effect of Paragraph 1 of the Protocol is that in normal circumstances any questions relating to the welfare of M should be determined by the Scottish Courts. Nothing has been brought to my attention suggesting that this case should be viewed as an exception to that rule.

[16] Paragraphs 2 and 3 of the Protocol give specific instances of circumstances in which a Judge of the court of a country to which the child has been removed, or from which he should have been but has not been returned, should not ordinarily exercise jurisdiction over the child, save insofar as necessary for the Court to order the return of the child to the country of his habitual or ordinary residence. Both of those instances concern cases where the court of the child's habitual or ordinary residence has made a custody or residence order or a restraint or interdict order. They do not, in terms, therefore, apply to the present circumstances. Nonetheless the general principle in paragraph 1 applies to the present case; and it is, in any event, within the spirit of the Protocol that the Scottish courts, being the courts of the country of M's habitual residence, should determine what is best for his welfare.

[17] I must, therefore, go on to consider the applications before me.
The applications before the court

[18] There are two applications before the court.
(i) The first is an application made by the defender that the court should "stop", or sist, the proceedings in Scotland to await the outcome of proceedings in Pakistan. Although the defender has not entered the process, and although her motion was not formally enrolled with the court, I think it proper that I should deal with it. It is supported by a letter from the defender to the Court of Session dated 20 November 2006. This application came before me on 24 November 2006. The defender was not present at that hearing and I, therefore, continued that hearing until 13 December to give the defender a further opportunity of appearing or being represented. The interlocutor to this effect was served on the defender; and, indeed, in anticipation of the hearing on 13 December, she has sent a further letter to the court.
(ii) The second is an application made by the pursuer by motion heard at the same time as the application by the defender. By his motion the pursuer asks the court to make:
"a residence order limited to arrangements for the child M to reside with the Pursuer from 1pm on Friday to 1pm on Monday each week, or such other periods as the Court shall order or the parties agree, and otherwise to reside with the Defender, on the basis that the Pursuer undertakes that he will make no objection to the Defender lodging a Minute for Variation of said arrangements (if so advised) on her return to the UK".

[19] It is implicit in the pursuer's motion that the Court is being asked also to make final the interim Order made by Lady Smith on 8 May 2006 ordaining the defender to return M to Scotland. Only on this basis, and on the basis that the defender chooses to come back to Scotland, can the proposal of shared residence be made to work.

The defender's motion to sist the proceedings in Scotland

[20] Dealing first with the defender's motion to sist the proceedings in Scotland, I note that soon after the defender was served with the Scottish proceedings on 13 June 2006 she instituted proceedings in Pakistan in the form of a Guardianship Application. I understand this to be an application that she be appointed guardian of the child and, in effect, be awarded sole custody. I have been told that the Guardian Judge at Lahore passed an interim custody order in favour of the defender on 22 June 2006 restraining the present pursuer illegally removing the child from the present defender. Since the Order made by Lady Smith on 8 May 2006 was not complied with, the pursuer has filed an "Article 199 Petition" before the Lahore High Court. This appears to be in the nature of a habeas corpus application on the ground that the child is habitually resident in Scotland and has been illegally and improperly detained in Pakistan, and further that the Scottish Court has made an Order for the return of the child to Scotland. Pending the determination of that petition, the High Court in Pakistan has made an Order that "in the meantime, the minor, namely M shall not be removed from the jurisdiction of this Court".

[21] The Scottish Court has jurisdiction over this matter by virtue of the habitual residence of the child, M. Further, in terms of the UK-Pakistan Judicial Protocol, it is agreed between the judicial authorities of both countries that in normal circumstances the welfare of the child is best determined by the courts of the country of the child's habitual residence. That country is Scotland. On the face of it, therefore, it is appropriate and in the interests of the child that this court should be the court which determines the matters in issue in this case. Furthermore, it is clear that no proceedings were commenced in Pakistan until after the Scottish proceedings were served on the defender. In those circumstances, it would be wrong to sist the proceedings in Scotland to await the outcome of those currently underway in Pakistan.

[22] I reach this decision to refuse to sist the Scottish proceedings without any disrespect to the courts in Pakistan before whom cases are presently pending. But those courts have only made interim orders; and I do not consider that any Order that I make runs counter to the existence of those interim orders. I recognise, however, that before M can be brought back to the UK pursuant to this Order, it will clearly be necessary that the pursuer's representatives make appropriate representations to the courts and other authorities in Pakistan, directly and/or through the liaison judge appointed in terms of the UK-Pakistan Judicial Protocol. I am confident that the Protocol will be an effective tool in helping to resolve the present difficulties.

[23] I should mention two matters which have come to my attention in the course of dealing with this matter.
(1) The first is that by letter dated 12 December 2006 faxed to the Court of Session, the defender has told the court that the pursuer's Article 199 Petition in the Lahore High Court has been dismissed. She goes on to say that the High Court ordered that the parties are free to contest the guardianship of the child in the action pending before the Guardian Judge in Lahore. Counsel for the pursuer told me that her agents had contacted their lawyer in Pakistan, and that she had told them that her enquiries did not reveal that the Petition had been dismissed. I cannot decide that. However, it seems to me that that question can make no difference to the decision I have made to refuse the sist.
(2) The second point is this. I have been shown various pleadings and other documents in the proceedings before the Guardian Judge in Pakistan. In her "Written Reply of Application for Issuance of Guardianship Certificate...", the present defender has told the Guardian Judge that she had been telephoned by a representative of the Court of Session in Scotland and told that "the proceedings being conducted [in Scotland] have been completely stopped until this Learned Family Court of Pakistan decides the matter". In paragraph 5(a) of that same document, the present defender says: "The Scotland Court of Sessions has accepted the stance of the Petitioner and hence stopped the proceedings [i.e. in Scotland]". I do not know whether the defender has misunderstood something that was said to her. However, I can state categorically that the proceedings in Scotland have not been stopped at any time. Indeed, the defender has been aware that the proceedings in Scotland were continuing, since she has written to the court in Scotland in relation to the various applications made or to be made in court in these proceedings. I would not wish the Court in Pakistan to proceed on a wrong understanding of the procedural status of the Scottish proceedings.

The pursuer's motion

[24] In his motion, the pursuer seeks a final determination of these proceedings, not to the full extent claimed in the Summons but in a modified form providing for shared residence.

[25] In support of the averments in the Summons, I have had presented to me an affidavit from the pursuer as well as affidavits from his mother, SB, and from a MW who works at a residential care home in Bilston and helps in the house where the pursuer lives with his family. On the basis of those affidavits I am satisfied that the welfare of M would be best served if I were to make the Order sought by the pursuer and I shall accordingly do so. Given the possibility that the defender will wish to apply to the court to vary or recall the Order, it is better that I say no more on this matter. The Order assumes that the defender will also return to Scotland. Unless she does so, then the part of the Order providing that M reside with her for half of each week cannot take effect.

[26] I should emphasise, if it were not already sufficiently clear, that since the defender has not entered the process I have not heard her side of the story except for the general comments made in correspondence and in the court proceedings in Pakistan. This is no doubt because the defender wishes to contest jurisdiction. I should, however, make it clear that if in the light of my decision the defender wishes to apply to the court for a variation or recall of the order I have made, she is perfectly at liberty to do so and the court will consider the matter afresh and make a decision having regard to the welfare of the child as a paramount consideration. There is express provision for this in the 1995 Act and in the Rules of Court: see Rule of Court 49.63. The defender will not be prejudiced in any such application by the fact that she has not taken part in the proceedings to date. The undertaking referred to in the pursuer's motion is an express recognition by the pursuer of the fact that, whatever Order the court makes in disposing of proceedings concerning children under section 11 of the Children (Scotland) Act 1995, that Order may be varied at any time on the application of either party. In offering his undertaking, the pursuer has made it clear through counsel that, if the defender applies to the court in Scotland to vary the Order, the pursuer will not advance any argument to the effect that a change of circumstances is required before the Order can be varied or recalled.