Sep 11 2008

Odd story on BBC website about a (perhaps imaginary) decision on jurisdiction

There was an odd story on the BBC Scotland website last night to the effect that a ‘Mr B’ had won an appeal against a sheriff court decision that a child residence case should not be determined in Scotland but in England. According to the BBC, ‘Three judges have ruled that an English Court without jurisdiction awarded the mother the right to keep her daughter. The judges also overturned rulings by sheriffs in Aberdeen that the case should be heard in the English courts.’ Although anonymised, this is fairly obviously a reference to the litigation previously in the Court of Session in RAB v MIB, Inner House, 12 August 2005, which gives its history1.

Now, what’s odd about this is that there is no report of any such decision today on the Scottish Courts website2 or on the noticeboard outside Court 1. So one is just left to wonder if the story is a work of imagination, or perhaps a leak of an unissued decision. [Note:  see update in next post; the decision was issued on 12 September.]

If however this story is true, this is potentially a very interesting decision on a difficult problem: the unthinking assertion by English courts of jurisdiction in cases emanating from Scotland with no proper regard to either the statutory scheme3 or international comity, and how to deal with such assertions without exposing clients to expensive satellite litigation. Lady Justice Arden in B v B described this as ‘what I trust is a rare occurrence, namely a court of the United Kingdom seizing jurisdiction, which it did not in fact have‘; it is questionable whether it is all that rare.

  1. See, for further background, a long series of Scottish and English judgments including Bennett v Bennett, Sheriff Principal, 20 January 2004; B v. B, English Court of Appeal, 28 May 2004; Bennett v Bennett, Sheriff Principal, 29 November 2004; Bennett v Bennett, Sheriff Principal, 18 January 2005; and Bennett v Bennett, Sheriff Principal, 15 January 2007. [back]
  2. The BBC don’t link to any decision; following their usual idle practice when referring to Court of Session decisions, they link only to the Scottish Courts ‘welcome’ page. [back]
  3. In this case, the Family Law Act 1986; there are questions as to whether (and, if so, how) Brussels IIbis applies between England, Scotland, and Northern Ireland. [back]

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