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Law - lack of jurisdiction unimportant

Child's welfare more important than residence order made without jurisdiction A recent Court of Appeal decision effectively upheld a residence order originally made without jurisdiction on the ground that, with the passage of time, the child's welfare was the issue the courts should be concerned with.

The issue was raised in the case of B v B concerning the most appropriate place of residence for a 7 year old girl, R, the daughter of Mr and Mrs B. In September 2000, the couple separated and Mrs B left the matrimonial home in Inverness and moved to London taking her daughter with her without the consent of the father.
In November 2000, Mrs B applied to the English courts for a residence order preventing Mr B from removing the child from her care. The order was served on Mr B in December 2000, without regard to section section 41 of the Family Law Act 1986 (FLA 1986), which treats a child in R's situation as habitually resident in Scotland for a year from the date of wrongful removal. In effect, the English courts did not have the jurisdiction to make the order within the time limits set by section 41, but it was not until more than a year later, in November 2001, that Mr B responded by applying for a residence order and a contact order in the English courts.
Mr B was eventually granted a contact order in November 2002 and took this opportunity to apply to the High Court under the Child Abduction and Custody Act 1985, claiming that matters relating to the welfare of R should be heard in the Scottish courts. He argued that the original residence order was made without regard to section 41 FLA 1986 and that all subsequent proceedings had been tainted by the English court's lack of jurisdiction to make it.
Mr B's argument was rejected by the High Court and in other related proceedings in England and he turned to the Scottish courts, initiating divorce proceedings in February 2003. He argued, again, that Scotland was the correct jurisdiction for matters relating to the welfare of R, but the Scottish Court exercised its jurisdiction not to initiate proceedings in relation to the child until the English proceedings had been concluded.
Meanwhile, the English Court of Appeal found that the lack of jurisdiction of the 2000 order did not, in itself, make it a nullity. On the face of it, the order was regular and until discharged it remained effective. Significantly, in the year subsequent to the making of the order Mr B did not initiate any proceedings in Scotland or England. By November 2001, when Mr B did initiate proceedings in England, section 41 of the FLA 1986 had ceased to have effect. The judge echoed the point made by Johnson J in the High Court: "the important question is whether R shall live with her mother in England or with her father in Scotland. In whichever country the decision falls to be made, the court will strive to achieve what is best for R. Be it in Scotland or be it in England, the objective will be what is best for her. Her interests will be paramount."
In relation to the Scottish divorce proceedings, the Court of Appeal agreed with the way in which the Scottish Court had's exerciseding of its discretion. Summer J concluded: "Mr B has belatedly issued divorce proceedings in what seems to me a last ditch attempt to resurrect the Scottish jurisdiction over R. In that, he had been properly thwarted both by the courts of Scotland and of England."
B v B

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