Calleja v Calleja [1996] ScotCS CSIH_4 (26 June 1996)

Calleja v Calleja [1996] ScotCS CSIH_4 (26 June 1996)

The Scottish court should recognise and give effect to the Maltese custody order unless there is evidence that enforcement would expose the child to physical or psychological harm; however, due to possible misunderstanding about the scope of the proof and potential relevant evidence not being led, the matter should be remitted for further consideration limited to evidence affecting the exercise of the protective jurisdiction and arrangements for delivery.

Citation
[1996] ScotCS CSIH_4
Parties
Petitioner: Petitioner (Mrs Calleja); Respondent: Respondent (Mr Calleja)
Jurisdiction
Scotland
Judgment Date
26 June 1996
Procedural Posture
Reclaiming Motion (appeal) Against Interlocutor in Child Custody Proceedings / Appellate (first Division, Court of Session)
Outcome
Interlocutor of the Lord Ordinary recalled in part; case remitted for further limited inquiry and report; further evidence to be considered only as to protective jurisdiction and arrangements for delivery.
Legal Topics
Child Custody, Recognition of Foreign Judgments, Jurisdiction, Protective Jurisdiction, Forum Non Conveniens
Family Law Private International Law Child Custody Recognition of Foreign Judgments Jurisdiction Protective Jurisdiction Forum Non Conveniens

Case Brief

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Parties

Petitioner (Mrs Calleja)

Petitioner

Respondent (Mr Calleja)

Respondent

Procedural Posture

Reclaiming Motion (appeal) Against Interlocutor in Child Custody Proceedings / Appellate (first Division, Court of Session)

Legal Issues

  1. 1 Whether the Scottish court should recognise and enforce a Maltese custody order regarding a child habitually resident in Malta
  2. 2 Whether the Lord Ordinary erred in allowing an amendment to seek delivery of the child after proof had commenced
  3. 3 Whether the Scottish court should exercise its protective jurisdiction to refuse enforcement of the foreign order on welfare grounds

Ratio Decidendi

The Scottish court should recognise and give effect to the Maltese custody order unless there is evidence that enforcement would expose the child to physical or psychological harm; however, due to possible misunderstanding about the scope of the proof and potential relevant evidence not being led, the matter should be remitted for further consideration limited to evidence affecting the exercise of the protective jurisdiction and arrangements for delivery.

Court Disposition

Interlocutor of the Lord Ordinary recalled in part; case remitted for further limited inquiry and report; further evidence to be considered only as to protective jurisdiction and arrangements for delivery.

Orders

  • Recall the interlocutor of 15 March 1996 so far as concerned with delivery and the respondent's sixth plea-in-law.
  • Uphold the respondent's sixth plea-in-law.