Family Law Titles
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(Family Division, Baker J, 31 July 2013)
The mother originated from Venezuela where she gave birth to the two older children but when the father died while she was pregnant the family relocated to Spain. The mother commenced a relationship with a Scotsman and they eventually married and moved to Scotland. The mother claimed that after she became pregnant again her partner became violent. When they separated the mother was granted a residence order and permission to remove the children to Spain. She initially stayed in Scotland before travelling to London where the family was placed in temporary accommodation in a refuge. However, the mother returned to Scotland leaving the children in the care of someone at the refuge before they were taken into police protection and placed with foster carers.
The mother had supervised contact with the children but she had recently returned to Scotland and had not seen the children for 3 months. The local authority had concerns about her mental health. The father sought to care for his daughter while the mother applied under Art 15 of BIIR for a transfer of proceedings to the Scottish courts.
The orthodox view that BIIR did not apply to the determination of jurisdiction between the different units of the UK had recently been approved by the Court of Appeal in Re W-B (Family Jurisdiction: Appropriate Jurisdiction within the UK)  EWCA Civ 592,  1 FLR 394.
While the wording of Art 66 of BIIR certainly left open the possibility that BIIR could be applied to jurisdictional disputes arising between the jurisdictions within the UK the approval of the Court of Appeal in Re W-B meant that Art 15 could not be used to transfer proceedings in this case.
In an appropriate case, where an English court was satisfied that the issue arising in care proceedings could and should be litigated in another part of the UK, it had the power, as part of its general case management powers, to stay the proceedings. In this case there were no grounds for staying or transferring the proceedings. Both the local authority and the children's guardian opposed any stay or transfer. There were at present no care proceedings in Scotland, and no suggestion that any local authority there was minded to start proceedings. The substance of the dispute between the mother and social services arose in England when the mother allegedly abandoned the children.
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