Family Law Hub

X (A Child) [2017] EWHC 158 (Fam)

Comity necessitated making without notice location and disclosure of information orders where a child has had been removed from Scotland to England, to enable implementation of earlier Scottish orders outside the jurisdiction

  • Neutral Citation Number: [2017] EWHC 158 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Friday, 27th January 2017

    Before:

    THE RT. HON. SIR JAMES MUNBY

    (President of the Family Division)

    - - - - - - - - - - - - - - - - - - -

    In the matter of X (A Child)

    - - - - - - - - - - - - - - - - - - -

    Transcribed by BEVERLEY F. NUNNERY & CO.

    (a trading name of Opus 2 International Limited)

    Official Court Reporters and Audio Transcribers

    5 New Street Square, London. EC4A 3BF

    Tel: 020 7831 5627 Fax: 020 7831 7737

    info@beverleynunnery.com

    - - - - - - - - - - - - - - - - - - -

    MR. ALISTAIR G. PERKINS (instructed by TV Edwards) appeared on behalf of the Applicant Father.

    - - - - - - - - - - - - - - - - - - -

    J U D G M E N T

    THE PRESIDENT:

    1 Mr. Perkins applies without notice for a location order and a disclosure of information order in somewhat unusual circumstances.

    2 The family were living in Scotland. Sometime towards the end of last year the mother removed the child, an eleven year old boy, from Scotland to England. The father made an application to Lord Brailsford, the Lord Ordinary, sitting in the Court of Session, on 25 January 2017. It may be helpful for me to set out the essential provisions in his fairly short order:

    "The Lord Ordinary, having heard Counsel on the motion of the Pursuer before service and calling, there being no caveat, ad interim, and in terms of section 35 of the Family Law Act 1986, interdicts the Defender from removing or attempting to remove the child [name and date of birth set out] outwith the United Kingdom; orders the Defender, in terms of section 37 of the Family Law Act 1986, to surrender to Messenger-at-Arms for onward transmission to the Deputy Principal Clerk of Session any United Kingdom, Albanian, Italian or other passports in her possession or under her control which has been issued to or contains particulars of the said child …; for that purpose grants warrants to open such lock fast places at which the Defender and the child…may be found; ad interim interdicts the Defender or anyone acting on her behalf from applying for a replacement passport in relation to the said [child], and decerns; refuses parts (i) and (iv) of the motion in hoc statu."

    3 Expressing that in English terms and substituting a reference to the Tipstaff for the reference to the Messenger-at-Arms, Lord Brailsford, as I understand the order, injuncted the mother from removing the child from the United Kingdom, made an order equivalent to an English Tipstaff passport order (albeit only, it should be noted, in relation to the child's passports) and injuncted the mother from applying for a replacement passport.

    4 The mother being, it is believed, in London (and indeed it appears from material put before me that, as recently as yesterday, the child had been at school in Hampstead) Mr. Perkins applies for the relief I have mentioned. He puts at the forefront of his case, understandably, the submission that in the circumstances it is appropriate and proper for this court, acting in comity with the courts of Scotland, to grant relief so as to make efficacious in this part of the United Kingdom the relief previously granted in relation to Scotland by Lord Brailsford.

    5 He very properly reminds me of what I said in In re A (A child) [2016] EWCA Civ. 572, [2016] 4 WLR 111 at para.61, repeated very recently in para.7(b) of Practice Guidance: Family Court - Duration of Ex Parte (Without Notice) Orders, dated 17 January 2017, as to the need for the court in a case such as this to be satisfied that the grant without notice of a location order is proper. It is perfectly apparent to me from the papers I have read, and also - and this is a significant matter - from the very fact that Lord Brailsford thought it appropriate to make such an order in Scotland, that this is indeed a case in which I should grant the relief sought without notice. I am satisfied that if notice was given of this application to the mother there is, as Mr. Perkins' client fears, a very real prospect indeed that she would re-abduct the child, either taking the child abroad or moving to some other place either in this country or some other part of the United Kingdom.

    6 Accordingly, I propose to grant the orders sought. The first will be a location order in standard form, including a passport order in relation to the passports both of the child and of the mother. The other order is an order seeking disclosure in the usual form from the child's school as to the child's address and whereabouts; it being contemplated that this order will not be executed if, as is anticipated, the Tipstaff is able within short order successfully to execute the location order.

    7 I mention one matter which arises as a matter of judicial comity. There is, as I have mentioned, an order from the Court of Session requiring the delivery by the mother of the child's passports to the Messenger-at-Arms. The location order I am making, of course, requires the delivery of those passports and, as I have said, also her own passports to the Tipstaff. That is an order which I make not with any intention of cutting across the order made by Lord Brailsford. On the contrary, it is an order I make so as to enable his order to be implemented as it were, from his perspective, "outside the jurisdiction".

    8 My assumption, although I stress it is only an assumption bearing in mind that this case has come on at short notice, is that, just as the Tipstaff has no jurisdiction outside England and Wales, the Messenger-at-Arms has no jurisdiction outside Scotland. So the passport order I propose to make is intended to make efficacious the order which the Court of Session has made in circumstances where, having successfully crossed the border, the mother has seemingly put herself outside the reach of the Messenger-at-Arms.

    9 In the circumstances, Mr. Perkins suggests, and I agree, that the location order - which will be made in the standard form - should be understood as authorising the Tipstaff, having seized the passports, to retain the passports in his control until the return day which I agree with Mr. Perkins should be in seven days' time.

    10 In the meantime, once the Tipstaff has executed the location order, consideration can be given by means of appropriate communications between the Tipstaff and the Messenger-at-Arms or, probably more conveniently, between this court and the Court of Session, as to whether it should be the Messenger-at-Arms acting on behalf of the Court of Session or the Tipstaff acting on behalf of this court who should thereafter hold the passports.

    11 For those reasons, and because an application of this kind arising as between Scotland and England is something I have not come across before - indeed Mr. Perkins with his great experience of these matters is unaware of such a case having arisen previously - it seemed to me appropriate to give this very brief judgment. I shall direct that the judgment is to be transcribed as a matter of urgency at public expense.


Judgment, published: 10/02/2017

Topics


Published: 10/02/2017

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item