UK – BUCHANAN – 1998

Buchanan v Buchanan (UK 1998)5 International Abduction [UK 1998]
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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.