KMI AGAINST SMO

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SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT HAMILTON

[2017] SC HAM 22

NOTE BY SUMMARY SHERIFF ALLAN MCKAY

In the case

K M I

Pursuer

Against

S M O

Defender

 

Pursuer: Hay Cassels

Defender: Cartys

 

Hamilton, 14^th March 2017

[1]        Having heard the agents for the parties I dismissed the cause with no expenses due to or by either party having made a declaration in terms of Article 17 of Council Regulation No.2201/2003 (Brussels II bis) that, although seised of the action, I had no jurisdiction over the issue and the Court in Eire had jurisdiction.  I assigned my clerk to inform the designated Scottish central authority of my decision so the appropriate court in Eire was furnished with information in light of the required cooperation between Member State courts.

 

Background

[2]        The parties are the parents of an infant child. Dad is Scottish and resides in Lanarkshire. He raised an action seeking residence and contact orders. The Initial Writ was warranted in early November 2016. At that time the child and his mother were living in Dublin, Eire. The action was defended and a timetable fixed. Defences were lodged and adjusted. The case called before me for a continued Child Welfare Hearing. The parties were present with their agents. A Bar report was available. In light of the pleadings and the content of the Bar report I raised the question of whether I had jurisdiction to deal with the issues in terms of Council Regulation No.2201/2003 (Brussels II bis). In terms of Ordinary Rule 33.22A I determined that it was crucial to the expeditious resolution of matters that I deal with such a fundamental issue. I was able to ascertain the matters in dispute (and therefore matters not in dispute) from the parties and any information relevant (rule 33.22A(4)) because parties properly fulfilled their duty in terms of rule 33.22A(6).  I was able, in terms of rule 33.22A(4)(a), to make a declaration under Article 17 of Brussels II bis that I had no jurisdiction in the matters which properly lay with Irish courts. It followed I had to dismiss the action.

 

Law

[3]        Which court has jurisdiction in matters of parental responsibility between nationals of member states of the European Council is determined by applying Council Regulation No.2201/2003 (Brussels II bis). Brussels II bis takes precedence over the Family Law Act 1986.

[4] Article 1(1)(b) Brussels II bis states that the regulation covers residence and contact orders and in such cases the main ground upon which a court may take jurisdiction is set out in Article 8,

“General jurisdiction

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

 

[5]        When a court is seised is detailed in Article 16,

“Seising of a Court

1. A court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;….”

 

[6]        The meaning of ‘habitual residence’ is clarified by Lord Reed in AR v RN [2015] UKSC 35:

“12. It is common ground that “habitual residence”, for the purposes of applying the Hague Convention and the Regulation, is to be determined in accordance with the guidance given by this court in the cases of A v A, In re L and In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1; [2014] AC 1038. It is also common ground that that guidance is consistent with the guidance given by the Court of Justice of the European Union as to the application of the Regulation in Proceedings brought by A (Case C-523/07) [2010] Fam 42, Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, and C v M (Case C-376/14PPU) [2015] Fam 116.

13. In A v A, Lady Hale drew attention at para 48 to the operative part of the judgment of the Court of Justice in Proceedings brought by A:

‘2. The concept of 'habitual residence' under article 8(1) of Council Regulation (EC) No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.’ (p 69)

14. Lady Hale also noted at para 50 the need to focus upon the primary carer, rather than the child, in cases where the child is an infant. As the Court of Justice explained in Mercredi v Chaffe: ‘An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where ... the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the court's case law, such as the reasons for the move by the child's mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant.’ (para 55)

15. In the circumstances of the present case, it is also important to note what was said by Lady Hale in relation to passages in Mercredi v Chaffe which appeared to import a requirement of permanence for residence to be habitual. In particular, in para 51 of Mercredi v Chaffe the Court of Justice stated:

‘In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.’

16. In A v A, Lady Hale commented at para 51:

‘At first instance in DL v EL [2013] FLR 163, Sir Peter Singer compared the French and English texts of the judgment, which showed that the French text had almost throughout used ‘stabilité’ rather than permanence and in the one place where it did use ‘permanence’ it was as an alternative to “habituelle”: paras 71 et seq.’

It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.

17. As Lady Hale observed at para 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. In particular, it follows from the principles adopted in A v A and the other cases that the Court of Appeal of England and Wales was right to conclude in In re H (Children) (Reunite International Child Abduction Centre intervening) [2014] EWCA Civ 1101; [2015] 1 WLR 863 that there is no “rule” that one parent cannot unilaterally change the habitual residence of a child.”

 

[7] It is possible to prorogate jurisdiction where:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.^[1]

 

[8]        Where a court of a Member State is seised of a case over which it has no jurisdiction and over which a court of another Member State has jurisdiction, it shall declare of its own motion that it has no jurisdiction.^[2]

 

Decision

[9]        When was the court seised?

The Initial writ was warranted on 3^rd November 2016. This is when the court is seised.

[10]      Where was the child habitually resident when the court was seised?

At this time the child was 22 months old having been born on 2^nd January 2015. He was residing with the defender (his mother) in Dublin. He was an infant and his mother was his main carer. The home was stable and well established. The child attended a local nursery. His brother attended a local school. This was the area where the child’s mother was brought up. She had many friends locally. There were numerous relatives living locally. This included the child’s maternal grandparents. There was an established care group. The child was born in Dublin when the parties lived there together. The child had lived in Scotland between May 2015 and February 2016. There was little stability or permanence about the child’s period in Scotland other than that he remained in the care of his mother. His mother had returned to Dublin on the breakdown of parties’ relationship. In November 2016 the child was residing in Eire and had spent thirteen months out of his life of twenty two months in Eire. The child had resided at all times with his mother who is also a national of Eire.

[11]      At the time the Court was seised of the action the child was habitually resident in Eire. Jurisdiction in relation to issues of residence and contact was properly founded in the appropriate court in Eire.

[12]      Did the parties prorogate jurisdiction?

The defender did not accept Jurisdiction was prorogated expressly or otherwise in an unequivocal manner. In any event I was not of the view that it was in the child’s best interests to prorogate jurisdiction. The terms of Article 12 are not met.

[13]      Declaration

I am of the opinion that, in the circumstances of this case, Scottish courts do not have jurisdiction to deal with issues of residence and contact. The court in Eire has jurisdiction. I must make a declaration in terms of Article 17. It follows I must dismiss the action. I find no expenses due to or by either party.

[14]      Cooperation between Central Authorities in matters of parental responsibility

A declaration of no jurisdiction under Art. 17 may trigger an obligation on the part of a court to communicate that decision to the court of the member state that does have substantive jurisdiction, in order that the latter court may take such measures as it considers appropriate for the protection of the child's best interests^[3]. It seems appropriate to do so in the present case. Pursuant to Art. 55(a)(iii), (c) and (e) of the Council Regulation, and in compliance with the spirit of the guidance issued by the CJEU in Proceedings brought by A , supra, I appointed the sheriff clerk to communicate the import of this interlocutor to the relevant Irish court(s) via the Scottish central authority designated under Arts. 53 and 66(c) of the Council Regulation.