R A B v M I B [2008] ScotCS CSIH_52 (09 September 2008)

R A B v M I B [2008] ScotCS CSIH_52 (09 September 2008)

The sheriff and sheriff principal misdirected themselves by focusing solely on witness convenience and failing to apply the correct legal tests for forum non conveniens. The Scottish court has primary jurisdiction as the court of dissolution of the marriage and is not clearly or distinctly less appropriate than the English court. No exceptional circumstances justify displacement of the Scottish court's jurisdiction.

Citation
[2008] ScotCS CSIH_52
Parties
Pursuer and Appellant: RAB; Defender and Respondent: MIB
Jurisdiction
Scotland
Judgment Date
09 September 2008
Procedural Posture
Divorce and Child Residence/contact / Appeal From Sheriff Principal to Inner House, Court of Session
Outcome
appeal sustained; plea of forum non conveniens repelled; interlocutors of sheriff and sheriff principal recalled
Legal Topics
Divorce, Child Residence, Child Contact, Forum Non Conveniens, Jurisdiction, Habitual Residence
Family Law Conflict of Laws Divorce Child Residence Child Contact Forum Non Conveniens Jurisdiction Habitual Residence

Case Brief

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Parties

RAB

Pursuer and Appellant

MIB

Defender and Respondent

Procedural Posture

Divorce and Child Residence/contact / Appeal From Sheriff Principal to Inner House, Court of Session

Legal Issues

  1. 1 Whether the Scottish court should decline jurisdiction over child residence/contact orders in favour of English courts under forum non conveniens
  2. 2 Whether the English court had competent jurisdiction given the child's removal without consent
  3. 3 Appropriateness of forum for determining child welfare issues

Ratio Decidendi

The sheriff and sheriff principal misdirected themselves by focusing solely on witness convenience and failing to apply the correct legal tests for forum non conveniens. The Scottish court has primary jurisdiction as the court of dissolution of the marriage and is not clearly or distinctly less appropriate than the English court. No exceptional circumstances justify displacement of the Scottish court's jurisdiction.

Court Disposition

appeal sustained; plea of forum non conveniens repelled; interlocutors of sheriff and sheriff principal recalled

Orders

  • Recall interlocutor of sheriff principal dated 15 January 2007
  • Recall interlocutors of sheriff dated 26 July 2006 and 4 September 2006