Buchanan v Buchanan (UK 1998) 5 International Abduction [UK 1998] =========================================================== OPINION OF LORD MacLEAN in the cause FRANCIS BUCHANAN, Pursuer, against MARGARET FITZGERALD or BUCHANAN, Defender. 11 March 1998 001 The parties were married at Cooperstown, New York State on 16 September 1989. They have three children, namely Scott Fitzgerald Buchanan who was born on 22 March 1991, Catriona Kerr Buchanan who was born on 23 July 1993, and Christopher McGinty Buchanan who was born on 2 November 1995. The pursuer was born in Scotland of Scottish parents. Having qualified in Scotland as a computer expert he has worked overseas for many years. From approximately the time he was married to the defender until January 1997 the pursuer was employed by the United Nations in New York and lived in Manhattan within the City of New York. In January 1997 the parties with their family left the City of New York to live in Copenhagen, Denmark where the pursuer continued to be employed by the United Nations. Both when he was resident in New York and in Copenhagen the pursuer, as I understand it, enjoyed diplomatic status. Towards the end of 1997 relations between the Parties broke down, not for the first time within their marriage. Proposals were made between them for what should happen in the event of their separating. On 19 January 1998 the pursuer concluded that the defender was intending to take not just two of the parties' children to the United States for her parents' 50th wedding anniversary, but all three children. In these circumstances he decided, while the defender was in hospital undergoing tests in relation to the viability of the child which she is currently expecting, to take all three children from Denmark to Edinburgh and in the meantime to leave his appointment with the United Nations in Copenhagen. 002 He then raised the current action of divorce against the defender on 23 January 1998 in which he also concludes for a residence order in relation to all three children. On 27 January 1999 at a hearing at which the defender was represented by Miss Hodge, I granted interim interdict of the defender from removing the children from the care and control of the pursuer and from removing them firth of Scotland. Early in February 1998 the defender commenced proceedings in the Family Court of New York State for Westchester County. That court granted various orders dated 4 February and 24 February 1998 in relation to all three children. On 11 March 1998 Miss Stewart appeared before me on behalf of the defender and moved me to sist the whole proceedings which had been raised in Scotland, including the divorce part of the action, in terms of section 14(a) and (b) of the Family Law Act 1996. 003 When a court in Scotland considers a motion to sist proceedings in terms of section 14(2)(a) or (b), it must in both cases, in my opinion, have regard to the principle of forum non conveniens. I agree with the observations in this respect by Lord McCluskey in Hill v Hill 1990 S.C.L.R. 238 at p.242. While counsel for both parties presented their submissions on this understanding, I thought it right to set out my opinion, as I have done, in view of the somewhat awkward wording of paragraphs (a) and (b) of sub-section (2). It seem to me that the question of the appropriateness of the forum should apply to both (a) and (b). 004 In applying the principle of forum non conveniens the court in the exercise of its discretion may sist the proceedings in Scotland if "it is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and for the ends of justice". (See Sim v Robinow 1892 10R 665 per Lord Kinnear at p. 668). In de Dampierre v de Dampierre 1988 1 A.C. 92 Lord Goff, having made reference to the dictum of Lord Kinnear, went on at p. 108: "The effect is that the court in this country looks first to see what factors there are which connect the case with another forum. If, on the basis of that enquiry, the court concludes that there Is another available forum which, prima facie, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless the circumstances by reason of which justice requires that a way should nevertheless not be granted. The same principle is applicable whether or not there are other relevant proceedings already pending in the alternative forum. However, the existence of such proceedings may, depending on the circumstances, be relevant to the enquiry. Sometimes they may be of no relevance at all, for example, if one party has commenced the proceeding for the purpose of demonstrating the existence of a competing jurisdiction, or the proceedings have not passed beyond the stage of the initiating process. But if, for example, genuine proceedings have been started and have not merely been started but have developed to the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing effect, then this may be a relevant factor to be taken into account when considering whether the foreign jurisdiction provides the appropriate forum for the resolution of the dispute between the parties." 005 In a case involving children, such as this one, their welfare is obviously an important factor for the court considering an application under section 14(2) of the Family Law Act 1986. I doubt, however, whether it Is correct to say that it is the paramount consideration. (See Re S. (A Minor) 1995 2 F.C.R. 162 per Thorpe, J. at pps 173-4; cf. H v.H (Minors) 1993 1 F.L.R. 938 per Waite, J, at p. 964 and p. 972-3; and Hill v Hill cited above per Lord McCluskey at pp. 241-242). It is important, of course, for the court to whom an application has been made under section 14(2), to avoid any consideration of the question, which party is the better suited or placed to have a residence order made in his or her favour. The welfare of the children is a consideration only in determining which is the more appropriate forum to determine in whose favour the residence order should be made. Another relevant consideration obviously is the habitual residence of the children at the time when application is made for a residence order. Consideration must also be given to the appropriateness of the forum in terms of the evidence which may be led before it. Where is the bulk of the likely witnesses located? In which jurisdiction is the decision in a relatively urgent matter involving children likely to be reached both more expeditiously and more thoroughly? In what circumstances were proceedings commenced in both jurisdictions? I have in mind here, of course, a case like the present where there are proceedings continuing in two competing jurisdictions. It is clear, too, that the means of the parties and the relative expense of the proceedings may be relevant considerations. (See H v H cited above per Waite, J. at p. 970). It may also be right to take into account where the children presently are, and how they got there. I am aware that I have not compiled an exhaustive list of factors to be be considered; and I am equally aware that the weight to be given by the court to any particular factor will depend on the circumstances of each case. 006 Having been born in the United States, these three children are United States citizens. Miss Stewart, I am sure, is correct in saying that, if asked now, the elder two children would say they were Americans. Until they left with their parents for Denmark in January 1997 all three Children had lived all their lives in the United States. Their father, however, I consider is a domiciled Scot, while their mother is plainly now domiciled In the United States being a United States citizen, holding both United States and Irish passports. Despite the opinion of the defender's U.S. attorney, Mr Arenstein, I do not think that the pursuer's habitual residence, when he resided in Denmark at least, was in the state of New York. On the information before me the pursuer enjoyed diplomatic status when he lived in Manhattan, New York, during his employment with the United Nations. At that time his declared country of repatriation was Scotland. He continued to have that status when be resided in Denmark, from which country he left to live in the country of his domicile, namely Scotland. Before he went to live in New York he and the defender in the very early period of their marriage lived in Luxembourg when they were both employed by the European Community. When they lived in family with their parents in Copenhagen the children, in my opinion, were not then habitually resident in New York State. If that is right, the order made by the Family Court of the state of New York, for Westchester County, dated 24 February 1998, is not to be granted recognition in terms of section 26 of the Family Law Act 1986. 007 The children spent a year in Denmark and since 19 January 1998 they have lived in Scotland. Mrs Scott is probably right when she said that any U.S. witnesses at a proof on custody (to use the New York term for convenience) would be of historic interest. Judged by the affidavits lodged on the defender's behalf, all the defender's witnesses, except one, are either in Copenhagen or in Scotland. I would, nevertheless, expect there to be other witnesses for the defender at such a proof who are currently resident in the United States. The pursuer's witnesses would appear to be currently resident mostly in Scotland or Denmark. It would appear that, as Mrs Scott put it, Scotland has "the marginal advantage of cantrality". 008 The children were suddenly taken to Scotland by their father without consultation with their mother. He anticipated - whether rightly or wrongly is a question I need not decide - that the defender was about to take all three children to New York State, never to return. As I understand it, this is not a child abduction case at the instance of the defender, only because neither of the parties wishes to return to Denmark and the Danish courts in that situation would not exercise jurisdiction. Indeed, according to the notes which I took of the submissions before me on 27 January 1998, the defender's counsel, Miss Hodge, intimated that the defender intended raising a Petition in Scotland under the Child Abduction and Custody Act 1985. For that reason, Mrs Scot, who appeared for the pursuer on that occasion, did not seek interim residence orders, but only interim interdict of the defender from removing the children from the control of the pursuer or from removing them furth of Scotland. In the event, of course, the defender did not raise a petition in this jurisdiction, but instead, promptly made application to the Family Court of New York State, for Westchester County. It is unfortunate that that court was of the view that no prior order had been made in Scotland in respect of the children. It is at the same time correct to say that at the hearing on 23 February 1998 the pursuer was represented before the court. So it may be reasonable to assume that the pursuer's representative properly informed the New York court about the extent of the Scottish Courts decision on 27 January 1998. While this is not properly a child abduction case in terms of the 1985 Act, it should in my opinion be treated like one, at least in terms of the urgency of arriving at a decision with regard to the welfare of the children. My understanding is that a hearing or proof on that matter can be heard in the Court of Session in the first or second week of next term which begins an 21 April 1998. Unfortunately, I do not know, as yet, when a similar hearing can be arranged in the New York Family Court. 009 The present arrangements for the welfare of the children appear to be satisfactory, at least in the short term. It will be for the court deciding the question of their custody whether in the longer term these arrangements should continue. The children live with their father in a house in Musselburgh where he looks after them full time. Scott, the eldest child, goes to the local P.C. primary school where he is doing well. The pursuer is assisted in looking after the children by his parents, his brother and his sister. It was said by Mrs Scott on his behalf that the pursuer is prepared to live off his investments and rental from a property he. owns in Edinburgh, as well as consulting work, rather than to return to work for the United Nations who had "kept him on their books'. Miss Stewart informed me that the defender has leased a family house in Cooperstown, New York State, which is where her parents live. The house will be within walking distance of her parents' house. Cooperstown is in upper New York State. I refer also to what the defender says in her affidavit on this matter. I should add that the defender is expecting the fourth child of the marriage in July and that this was a planned pregnancy. The defender's other family live in and around New York City. I accept that it was the ultimate intention of the parties to live in Scotland. In August 1997 the defender was communicating about the parties' future purchase of a house somewhere outside Edinburgh where the family would ultimately settle. Now that the parties are separated and divorce proceedings have been commenced, the defender understandably wishes to live in New York State and not in Scotland. Nevertheless, it was clearly the aim of the parties at some time in the future to settle in Scotland. Whoever decides the question of custody will have to consider how in these circumstances this family can but be kept together as a unit, including the unborn child. 010 In this action the defender has the benefit of legal aid. It was accepted by counsel that no such financial support would be available in the Family Court of New York State, and that proceedings there would be considerably more expensive than they would be here In Scotland. 011 Mss Stewart for the defender must satisfy me that in all the foregoing circumstances it would be more appropriate for the question of custody of these children to be determined in the proceedings in the Family Court of New York State rather than in the Court of Session. I do not, incidentally, agree with Mrs Scott, that it must be demonstrated that New York State is "clearly" the more appropriate jurisdiction. The adverb "clearly" finds no place in section 14 of the Family Law Act 1986. I have reached the conclusion that Miss Stewart has not satisfied me that the Family Court of New York State is the more appropriate forum in which to decide the custody of the parties' children. That is not, of course, to say that this court will not decide custody in favour of the defender, and the defender must clearly understand that. The children are here within this jurisdiction, for the present, and certainly while their mother is here and able to see them, there is no good reason why they should be removed to another jurisdiction. I am not persuaded that their habitual residence is in New York State. Within approximately one month the question of custody can be decided at a proof or hearing here. I accept that a number of witnesses may have to be brought here from New York State, but It would nonetheless appear that the bulk of the witnesses will not come from New York State. Besides, this, it appears, was the country in which the parties intended to settle, had their marriage not broken down. It is certainly the country of the pursuer's domicile. I will for these reasons therefore refuse the defender's motion to sist the present proceedings in the Court of Session. Mrs Scott did not move meantime her own motion, on which, she said, she reserved her position.