Scottish Court of Session Decisions

At advising, on 2nd February 1991, the opinion of the court was delivered by Lord Dunpark.

OPINION OF THE COURT.—This is a reclaiming motion at the instance of a wife respondent in a petition to the Court of Session by a husband, against an interlocutor of the Lord Ordinary dated 23rd June 1989 in which he ordered the reclaimer to deliver up the child of the marriage, Gary Anthony Woodcock, to the petitioner.

On 19th June 1989 the petitioner made an ex parte application to the Family Division of the English High Court of Justice to order (1) that the child be made a ward of court, (2) that the child remain in the interim care and control of the petitioner until further order and (3) that the reclaimer, Karen Woodcock, do hand over the child into the custody of the tipstaff of the High Court of Justice. The court made orders in these terms on 19th June 1989 without having before it an affidavit sworn by the petitioner.

Such an affidavit was sworn by the petitioner on 20th June 1989 in which he stated that the petitioner and reclaimer had been married in England on 27th July 1985 and that the child, Gary, was born on 8th June 1988. It appears that the parents had lived together after their marriage at Bexhill-on-Sea until 16th June 1989 when the reclaimer left home with the child without warning. Thereafter the petitioner applied for the orders before mentioned and on 21st June 1989 obtained a court order for registration of the order dated 19th June.

This order was registered in the Court of Session on 23rd June in accordance with sec. 27 (1) of the Family Law Act 1986 (hereinafter referred to as "the Act"). All the relevant sections of the Act relate to "custody orders", but a wardship order made under the Guardianship of Minors Acts 1971 and 1973, as this one bears to have been, is included in the definition of "custody order" in sec. 1 (1) of the Act.

The petitioner then presented his petition to the Court of Session and sought inter alia edictal citation of the petition on the reclaimer, upon the ground that he did not know her address, with two days thereafter allowed for the reclaimer to lodge answers. He also sought interim interdict against the reclaimer removing the child from the petitioner's care and an order upon the reclaimer to deliver up the child to the petitioner with the usual warrant failing delivery.

On 23rd June 1989 the Lord Ordinary pronounced the following interlocutor:

"The Lord Ordinary having heard counsel no caveat having been lodged appoints the petition to be intimated on the walls and in the minute book in common form, appoints service upon the respondent as craved and appoints her and any other persons having an interest to lodge answers hereto if so advised within two days after such intimation and service; meantime having heard counsel, no caveat having been lodged, ordains Karen Woodcock to deliver up the child of the marriage between the petitioner and the said Karen Woodcock, namely Gary Anthony Woodcock, to the petitioner; further in respect of the said Karen Woodcock's failure to deliver up the said child grants warrant to and authorises messengers at arms and officers of law to search for and take into their custody the said child Gary Anthony Woodcock wherever he may be found and deliver him into the custody of the petitioner; requires all sheriff [sic] in Scotland to grant their aid in execution of such warrant and recommends all competent courts to give their aid and concurrence in carrying this warrant into effect; authorises execution of this order to proceed on a certified copy of this interlocutor; further grants interim interdict against the said Karen Woodcock or anyone acting on her behalf from removing or attempting to remove the said child from the petitioner's care and control furth of the United Kingdom."

We were informed that the reclaimer learned that this interlocutor had been pronounced through messengers-at-arms searching for the child and on 27th June 1989 counsel for the reclaimer appeared before another Lord Ordinary and moved him inter alia to sist the proceedings in terms of sec. 30 (1) of the Act and to recall the interlocutor dated 23rd June 1989. The Lord Ordinary refused these motions on the ground that it was incompetent for him to recall the interlocutor of another Lord Ordinary, but he ordered a report on the child's circumstances. This report dated 3rd July 1989 was before us.

At the hearing of the reclaiming motion counsel for the reclaimer submitted that, in making the delivery order, the Lord Ordinary had exercised his discretion unreasonably in respect that he had ordered the reclaimer to deliver the child at the same time as he had ordered edictal citation on a two-day induciae, which denied the reclaimer any opportunity of exercising her right to oppose the order and move for the proceedings to be sisted in terms of sec. 30 (1) of the Act. Counsel referred to Rule of Court 269V; which relates to proceedings under sec. 29 (1) of the Act for enforcement of a custody order registered in the Court of Session, and in particular to para. (4) of that rule which states:

"There shall be such intimation and service of a petition under this rule as the court may require."

Counsel stressed that in June 1989 the child was only one year old and had been in the continuous care of his mother since birth and that to order her to deliver the child to the father immediately without any inquiry into her or the child's circumstances could not be said to be a reasonable exercise of the court's discretion in the best interests of the child. She pointed out that nowhere in the Lord Ordinary's opinion was there any reference to sec. 29 (2) of the Act, which states: [Their Lordships quoted sec. 29 (2) as set out supra and continued thereafter].

The Lord Ordinary must have had sec. 29 (1) in mind in relation to his powers because he refers to the powers under sec. 17 to order delivery of the child and the power to grant interim interdict under sec. 35 of the Act prohibiting removal of the child from the control of the person in whose custody the child is or from the United Kingdom or any part of it; but the Lord Ordinary stated his reasons for granting the delivery order without reference to sec. 29 (2) as follows:

"Having regard to the information before me including that in the affidavit, about the habitual residence of the child, the circumstances of the child's departure and the petitioner's concerns for the child's welfare, I considered that it was appropriate to secure that the child should be returned to the petitioner's care in the matrimonial home quam primum [at pp. 269–270, supra]."

We appreciate the Lord Ordinary's difficulty in respect that the petitioner maintained that he did not know the reclaimer's address, but the petitioner also said in his affidavit, which was before the Lord Ordinary:

"The area to which I anticipate the defender has gone in Scotland I would describe as rough."

Moreover, it may be of signficance that between 23rd June and 3rd July 1989 the reporter saw the reclaimer and child in her father's home in 15 Vaila Street, Glasgow, where she was living with the child, and that there is no mention in the petitioner's affidavit of him having contacted her parents in Glasgow or of having made any attempt to trace her.

Section 29 (2) refers to "directions … for the purpose of securing the welfare of the child". That involves some inquiry into whether it would be in the child's best interests to be ad interim in the care of the father or mother. The Lord Ordinary had no material upon which he could then make any comparison but made the delivery order solely on the information placed before him on behalf of the petitioner. Morever, we do not know what were his "reasonable grounds for apprehending an attempt by the respondent to remove the child from Scotland and thus to defeat both the present application and the original custody order". The only mention of this in the affidavit is a holiday in Greece.

From para. 7 of the affidavit it is evident that the petitioner was in touch with the reclaimer's family and friends. They may well have told him that they did not know where the reclaimer was but, if the Lord Ordinary had ordered edictal service on the normal induciae and directed the petitioner to make full inquiries as to the whereabouts of the reclaimer on the ground that he was unwilling to make a delivery order without proper attempts being made to trace the reclaimer, that might have goaded the petitioner into tracing the reclaimer or at least informing her parents that the court was likely to order the reclaimer to hand over the child to him unless the reclaimer appeared to oppose the order.

There may be a question whether it was competent for the Lord Ordinary in the circumstances to pronounce an interlocutor appointing edictal service on a two-day induciae and at the same time ordering delivery of the child in the knowledge that the delivery order would take immediate effect before the expiry of the induciae and, for all we know, before the edictal citation was effected. However, counsel for the reclaimer did not make that submission, and it is sufficient for us to say that it was not a reasonable exercise of the Lord Ordinary's discretion to make a delivery order in the knowledge that it would be effective immediately without giving the reclaimer that opportunity of opposing it. Without giving the reclaimer that opportunity, the Lord Ordinary was not in a position to determine whether or not a delivery order would "secure the welfare of the child" in terms of sec. 29 (2).

The result of this interlocutor is that the child has remained in the care of the reclaimer until her reclaiming motion has been decided. The Lord Ordinary really should have anticipated that, when the messengers-at-arms arrived to enforce the delivery order, the reclaimer would be likely to reclaim and, if the child was in real danger in the reclaimer's care, the delay between his order and the hearing of the reclaiming motion would not have been in the best interests of the child. Fortunately we have the reporter's report dated 3rd July 1989. This makes it clear that the child was then "healthy, well nourished and happy in his mother's care. The bond of mutual affection was plain to see".

We were informed that the petitioner has raised an action of divorce in England in which he claims custody of the child. We are also informed that, notwithstanding opposition from the petitioner, the reclaimer has now been granted legal aid in England to claim custody of the child in that process. In our opinion, on all the information before us, the High Court in England is the proper forum for determination of the custody of this child. We shall therefore grant the reclaiming motion, recall that part of the interlocutor of the Lord Ordinary dated 23rd June 1989 from the words "meantime having heard counsel" to the end, which leaves only the order for service and answers. As the reclaimer must now respond to the jurisdiction of the High Court in England and there was no suggestion that she was likely to take the child furth of the United Kingdom, interim interdict to prevent that is unnecessary. Further, we shall grant counsel for the reclaimer's motion in terms of sec. 30 (1) of the Act to sist these proceedings to enable the reclaimer to make her claim for custody in the English divorce process.

For future guidance we express the opinion that, while the Act has laid down the procedure for enforcement of custody orders made by a foreign court, it has not elided the limited protective jurisdiction of the Court of Session to refuse to give effect to the custody order of a foreign court (even if it is a decree in rem, which the English order in this case is not) which the Court of Session may always exercise if it is satisfied that enforcement of the foreign decree would result in physical or moral injury to the child. (See Westergaard v. Westergaard 1914 S.C. 977, perthe Lord Justice-Clerk (Macdonald) at p. 981 and Radoyevitch v. Radoyevitch 1930 S.C. 619, where the court saw fit to obtain medical reports on the child's health; and see Anton, Private International Law (1st edn.), p. 378.)