M (minors), Re

A custody order made in Scotland and registered in England under the Family Law Act 1986 is to be recognised and enforced as if made by the English court with jurisdiction. Enforcement is governed by comity. Unless wholly unusual circumstances exist, the English court must not question the correctness of the Scottish order or act as an appellate court. Enforcement proceedings should not become an interim custody hearing or be used to vary the registered order. Related matrimonial proceedings do not, without more, justify staying enforcement.

A mother obtained an interim custody order from the Scottish High Court on 12 October 1990 after taking the children to Scotland. The order was registered in England under section 27 of the Family Law Act 1986. The father subsequently commenced divorce proceedings in England and sought a stay of enforcement under section 30, while the mother sought enforcement.

The Scottish matrimonial proceedings were sisted under paragraph 8 of the Third Schedule to the Domicile and Matrimonial Proceedings Act 1973. The High Court, Family Division, ordered enforcement. The central issue on appeal was whether the English court should stay enforcement or effectively determine an interim custody application in favour of the father.

1. Appeal dismissed unanimously. The President delivered the judgment, and Lord Justice Stuart-Smith and Lord Justice Mann agreed.
2. Section 25(1) of the Family Law Act 1986 requires a custody order made in one part of the United Kingdom to be recognised in another part as having the same effect as if made there by a court with jurisdiction. Sections 27 and 29 provide the registration and enforcement mechanisms.
3. Once the Scottish order had been duly registered, the English court had the same enforcement powers as if it had made the order itself. The ordinary principle of comity required enforcement unless circumstances of a wholly unusual nature justified a different course.
4. The English judge could not question the correctness of the Scottish court’s procedures or orders, particularly where the Scottish courts had considered the interim custody issue on several occasions and had refused permission to appeal. The English court was not exercising an appellate jurisdiction over Scotland.
5. Section 30 permitted an interested person to seek a stay where other proceedings might cause the registered order to cease to have effect or to have a different effect. That provision did not make the enforcement hearing an occasion for the English court to decide interim custody, assess the children’s welfare as if on a fresh custody application, or vary the Scottish order.
6. The English divorce proceedings had caused the Scottish matrimonial proceedings to be stayed under paragraph 8 of the Third Schedule to the Domicile and Matrimonial Proceedings Act 1973. The Scottish custody order would continue temporarily, but that transitional duration did not justify refusing enforcement. Mrs Justice Bracewell had correctly exercised her discretion.

• Court of Appeal (Civil Division): unanimously dismissed the appeal and upheld the order for enforcement.
• High Court of Justice, Family Division: Mrs Justice Bracewell ordered enforcement of the registered Scottish interim custody order on 21 December 1990 and refused to stay enforcement.