P v G

Where a child is removed from Scotland without the consent of a parent with parental responsibility, Family Law Act 1986, section 41 preserves the child’s habitual residence in Scotland for one year. The Scottish courts therefore retain jurisdiction for Part 1 orders.

The English court may exercise its inherent jurisdiction under section 2(3)(b)(ii) only where the child is present in England and Wales and the immediate exercise of its powers is necessary for the child’s protection. That jurisdiction is a temporary holding jurisdiction in an urgent case. It cannot become a continuing or primary jurisdiction merely because protective orders were first made in England.

The father applied under section 5 of the Family Law Act 1986 to stay Children Act proceedings issued by the mother in England, contending that welfare proceedings should take place in Scotland.

The family had lived in Scotland. After alleged violence, the mother moved to England with the children. The father had parental responsibility for S, but not for C. Proceedings were issued in both jurisdictions. Scottish proceedings were active and included an interim contact order, while the English court had made residence, prohibited steps and protective orders.

The central issues were whether section 41 preserved Scotland’s jurisdiction concerning S, whether the English court could retain jurisdiction under the urgent-protection exception in section 2(3)(b)(ii), and where jurisdiction lay concerning C.

1. Application granted in substance. The English Children Act proceedings concerning S were stayed after 12 May 2010. The protective non-molestation orders were continued until that date and were not affected because they were not Part 1 orders.
2. Section 41 of the Family Law Act 1986 applied to S because she had been removed from Scotland without the permission of the father, who had parental responsibility. S was therefore treated as remaining habitually resident in Scotland for the statutory period. The Scottish courts were the proper courts to determine her future welfare.
3. Section 2(3)(b)(ii) created a limited exception to the general rule. It permitted the English court to exercise its inherent jurisdiction where the child was present in England and Wales and the immediate exercise of its powers was necessary for protection. The words “immediate” and “necessary for his protection” indicated an urgent holding jurisdiction pending the Scottish court’s resumption of control.
4. The English court’s earlier ex parte protective orders did not make jurisdiction res judicata. Nor did later directions, made expressly in the context of the father’s proposed stay application, amount to acceptance of continuing English jurisdiction. The urgent exception could not be used as a vehicle for a continuing primary jurisdiction over the child’s upbringing.
5. The position concerning C was different. The father lacked parental responsibility, so section 41 did not apply. Applying Re J (a minor) (abduction: custody rights) [1992] AC and Re S (habitual residence) [2009] EWCA Civ 1021, C had become habitually resident in England and Wales. The English court therefore had jurisdiction concerning C. Forum conveniens considerations could not displace the statutory jurisdictional scheme.

First-instance jurisdictional determination. The judgment records concurrent proceedings before the Scottish Sheriff Court and an appeal to the Sheriff Principal, but no appeal from this judgment.