In raising a court action it is necessary to consider the appropriate jurisdiction in which to litigate. Sometimes this can be straightforward, but in other cases this is not so clear cut.
The recent case of RH v RH, Sheriff Appeal Court, considered this issue in determining whether Dundee Sheriff Court had jurisdiction to consider matters relating to a child.
The parties to the action were married in California. They had a child, aged 5, who was also born in California. The parties and the child were American citizens. The child had lived in Tennessee for most of his life, until October 2015 when he moved to Scotland with his mother. His father had moved to Scotland two months earlier. The parties separated in February 2016. An action was raised by the mother in Scotland and by the father in Tennessee. Decree of divorce was granted by the court in Tennessee. The mother sought to appeal this. This appeal had not been heard at the time of the appeal in Scottish action.
In the Scottish action, at first instance the Sheriff found in favour of the father and agreed that it was appropriate to sist the action, on the basis that it would be more appropriate for the matter to determined in the USA.
The matter was appealed to the Sheriff Appeal Court. The case was heard by Sheriff Principals Pyle, Lewis and Murray. They found in favour of the mother, concluding that Dundee Sheriff Court was the appropriate forum in which to consider matters relating to the child. They agreed with the Sheriff at first instance that the factors to be considered were as follows:
- the habitual residence of the child at the time an application for a residence order is made;
- which forum is more convenient for the bulk of the evidence to be led;
- in an urgent matter, in which jurisdiction are decisions likely to be reached more expeditiously and after more thorough consideration;
- in what circumstances were proceedings commenced in both jurisdictions and
- where the child presently is and how he got there
They acknowledged that it had been appropriate for the Sheriff at first instance to consider additional factors.
They concluded, however, that whilst the Sheriff had considered all the necessary factors, she did not have sufficient regard to the child's habitual residence, which 'weighs heavily.. where the paramount consideration is ultimately the welfare of the child'. They observed that the 'child is currently in Scotland and that weighs heavily with us in the desirability of a court in Scotland being the natural forum to determine matters relating to residence, contact and the overall welfare of the child'. They considered that the Sheriff had focussed too heavily on the 'precarious nature' of the mother's residence in the United Kingdom, as her entitlement to remain in the UK was uncertain. She had paid insufficient regard to the status quo, focussing instead on the fact that the child had lived the greatest part of his life in Tennessee.
Whilst each case will be specific on its facts, this highlights the significance of the child's habitual residence in determining where a case relating to a child ought to be litigated. The case in full can be accessed at: http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017-sac-(civ)-031.pdf?sfvrsn=0.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.