Woodcock v Woodcock [1990] ScotCS CSIH_1 (02 February 1990)

Woodcock v Woodcock [1990] ScotCS CSIH_1 (02 February 1990)

It was not a reasonable exercise of discretion for the Lord Ordinary to order immediate delivery of the child without giving the respondent an opportunity to oppose or making inquiry into the child's welfare as required by section 29(2) of the Family Law Act 1986. The proper forum for determination of custody is the High Court in England.

Citation
[1990] ScotCS CSIH_1
Parties
Child: Gary Anthony Woodcock; Petitioner/husband: Mr. Woodcock; Respondent/wife/reclaimer: Karen Woodcock
Jurisdiction
Scotland
Judgment Date
02 February 1990
Procedural Posture
Family Law Petition (custody Enforcement) / Reclaiming Motion (appeal) Against Interlocutor Ordering Delivery of Child
Outcome
Reclaiming motion allowed; delivery order recalled; proceedings sisted to allow custody claim in English divorce process.
Legal Topics
Child Custody, Enforcement of Foreign Custody Orders, Jurisdiction, Interim Interdict, Welfare of the Child
Family Law Private International Law Child Custody Enforcement of Foreign Custody Orders Jurisdiction Interim Interdict Welfare of the Child

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Parties

Gary Anthony Woodcock

Child

Mr. Woodcock

Petitioner/husband

Karen Woodcock

Respondent/wife/reclaimer

Procedural Posture

Family Law Petition (custody Enforcement) / Reclaiming Motion (appeal) Against Interlocutor Ordering Delivery of Child

Legal Issues

  1. 1 Whether the Lord Ordinary exercised discretion reasonably in ordering immediate delivery of the child without giving the respondent an opportunity to oppose
  2. 2 Whether the welfare of the child was properly considered under section 29(2) of the Family Law Act 1986
  3. 3 Whether the Scottish court should enforce the English custody order or sist proceedings for determination in England

Ratio Decidendi

It was not a reasonable exercise of discretion for the Lord Ordinary to order immediate delivery of the child without giving the respondent an opportunity to oppose or making inquiry into the child's welfare as required by section 29(2) of the Family Law Act 1986. The proper forum for determination of custody is the High Court in England.

Court Disposition

Reclaiming motion allowed; delivery order recalled; proceedings sisted to allow custody claim in English divorce process.

Orders

  • Recall of interlocutor of 23rd June 1989 from 'meantime having heard counsel' to end, leaving only order for service and answers.
  • Interim interdict refused as unnecessary.