American woman wins appeal against sheriff’s ‘forum non conveniens’ ruling

An American woman who challenged a sheriff’s decision that a dispute with her former husband over the care of their child should be determined in the United States rather than in Scotland has successfully appealed against the ruling.

The Sheriff Appeal Court held that the sheriff “erred in law” in deciding to sist the case so that the proceedings could be concluded in a court in Tennessee instead of Dundee Sheriff Court.

Residence order and interdict

Sheriff Principal Derek Pyle, Sheriff Principal Duncan Murray and Sheriff Principal Marysia Lewis heard that the appellant “RH” was seeking a residence order in respect of the parties’ five-year-old son, “C”, and for interdict to prevent her ex-partner “RH” from removing the child to the U.S.

The case called before the sheriff at Dundee on the respondent’s motion under section 14(2) of the Family Law (Scotland) Act 1986 to sist the cause on the grounds that proceedings with respect to the matters to which the application related were continuing outside Scotland, namely Tennessee, and that it would be more appropriate for those matters to be determined in the proceedings outside Scotland.

The appellant appealed against the decision of the sheriff following a debate to uphold the respondent’s “forum non conveniens” plea-in-law and to sist the cause.

Appropriate forum

Counsel for the appellant, John Speir, submitted that the application of the plea of forum non conveniens required a tripartite approach: (1) the party advancing the plea had to demonstrate that there was another available forum of competent jurisdiction; (2) that the forum is a clearly or distinctly more appropriate forum in which the case may be tried more suitably for the interests of justice, interests of the parties and the ends of justice; and (3) if those two thresholds are passed where there are no other circumstances by reason of which justice requires that a stay should nevertheless not be granted.

In relation to the first threshold test it was argued that the sheriff had erred in concluding that the respondent had established there was another court of competent jurisdiction, having failed to give proper weight to the fact that the proceedings in Tennessee were subject to “jurisdictional challenge” on appeal.

It was accepted that the sheriff had correctly identified the second threshold test as being the forum with which the dispute between the parties has “the most real and substantial connection”, but it was submitted that she had failed to properly identify what the dispute was and failed to properly identify the connecting factor between the dispute and the natural forum for its resolution.

Counsel for the respondent, Ruth Innes, moved the court to refuse the appeal, arguing that there were no grounds for the court to interfere with the exercise of her broad discretion, in terms of section 14(2)(a), as to whether a case ought to be sisted where there were proceedings continuing outside Scotland.

It was submitted that the sheriff had applied the “correct legal tests”, had regard to the factors to be considered in considering forum non conveniens, and was correct to accept the decision of the Tennessee court in a reasoned opinion that it had jurisdiction as being the “appropriate court” to reach a view of the law of Tennessee.

Sheriff ‘fell into error’

Allowing the appeal, the appeal sheriffs considered that the Scottish court was “best placed” to secure documentation or reports to assist it in making a determination on the ultimate issues which will have to be determined for the child’s welfare.

Delivering the opinion of the court, Sheriff Principal Murray said: “While the sheriff is correct to identify that C had lived the greatest part of his life in Tennessee, given the various locations he had lived in his short life that is not in our view a significant factor. Having regard to the transient lifestyle of the parties we are unable to accept that the Tennessee court offers a more appropriate forum to determine the issues. In particular Dundee Sheriff Court will be better placed to secure relevant evidence of the current circumstances and arrangement’s for securing C’s welfare.

“We accept that the welfare of the child is a very significant factor and while any decision of the Dundee Court may be transient in the event of the appellant and C leaving the jurisdiction of Dundee Sheriff Court it places the court in Dundee in a highly advantageous position to make a determination while the child and appellant are habitually resident within its jurisdiction. We therefore find that the sheriff has fallen into error in not giving sufficient weight to this factor.”

He added: “We are also conscious of the need to progress cases involving children promptly and so long as the child remains resident here there may well require to be a determination of the Scottish courts to enable enforcement of any decision of the Tennessee Court. It is highly likely that evidence will be required of the child’s current circumstances before any decision is reached.

“In practical terms therefore the continuance of the action before Dundee Sheriff Court even if subject to appeal would in our view be in the overall interests of justice and that the sheriff in Dundee is best placed to progress matters in the meantime and should continue to do so. We find therefore that the sheriff erred in deciding that the Tennessee Court was the more appropriate forum and the sist should be granted…”