A couple went to live in Scotland with their children. The father was Scottish: the mother English. The mother left the family home and took the children to England without the father’s knowledge, and obtained an ex-parte residence order and a prohibited steps order to prevent the father from removing the children. She also issued a divorce petition. The Circuit Judge in England made an ex-parte injunction restraining the father from instituting proceedings in Scotland. The judge decided that England was the appropriate jurisdiction for the divorce proceedings. The father appealed.
Held: The court allowed his appeal. The judge had been wrong to decide either that the children had no habitual residence or that they were habitually resident in England. The grant of an injunction was inconsistent with the legislative framework provided by the 1973 Act. Undeer Schedule 1, paragraph 8(1), if a petition was presented in that part of the United Kingdom where parties were habitually resident when they last lived together, then any earlier petition presented in a different part of the United Kingdom by the other party to the marriage had to be stayed in favour of the petition presented in the place where the parties were habitually resident. Parliament not only permitted the father to present his petition in Scotland, but expressly provided that if he did so, the mother’s English proceedings should be stayed, and the English court should thereafter have no jurisdiction to make an order under Section 8 of the Children Act 1989 unless it was necessary to do so in order to deal with urgent matters.

Judges:

Butler-Sloss LJ

Citations:

[1997] 2 FLR 263

Statutes:

Domicile and Matrimonial Proceedings Act 1973

Jurisdiction:

England and Wales

Cited by:

Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
Lists of cited by and citing cases may be incomplete.

Children, Jurisdiction, Scotland

Updated: 03 February 2022; Ref: scu.197889

Whitehead’s Trustees v Whitehead: SCS 6 Jul 1897

Court of Session Inner House First Division
A truster directed his trustees, ‘previous to their dividing the residue of my said estate as after mentioned, to set apart and invest . . the sum of pounds 1600, in two sums of pounds 800 each, for behoof of my two unmarried daughters M and W, said sums to be so invested in the names of my said trustees for their behoof, and the interest to be paid to them respectively so long as they remain unmarried. . . Declaring that in the event of either of my two daughters contracting marriage or dying . . the interest on said sum effeiring to such daughter shall be paid to my other unmarried daughter so long as she shall remain unmarried.’ The trustees were further directed, in the event of the marriage of either of these daughters, to pay to her a sum of pounds 200 out of the pounds 1600 for her outfit. In the residuary clause the truster directed that after payment of his debts and ‘after investing the said sum of pounds 1600,’ his trustees should make over ‘the residue of my said estate and effects to and among my three daughters E., M., and W. . . but deducting from the shares of my said children any sum or sums that may have been paid by my said trustees to any of my said daughters for outfit in the event of the marriage of either of them.’ No other provision was made as to the fee of the pounds 1600 which the trustees were directed to invest for behoof of the two unmarried daughters.
Held (1) that no fee in the principal sum was conferred upon the unmarried daughters by the direction to hold it on their behoof and pay them interest; (2) that it fell into residue; (3) that on renouncing their liferent they were entitled to call upon the trustees to pay over their shares of the sum as residue.