(Extra Division, Inner House, Court of Session; Lord Eassie, Lady Paton, Lord Mackay of Drumadoon; 9 September 2008)
The couple were habitually resident in Scotland with the child. Without the father's consent the mother took the child to London, where she obtained an ex parte residence order from the English court. The father challenged the order on the basis that the English court had no jurisdiction, but was unsuccessful. The father later began divorce proceedings in Scotland, raising issues concerning the child's residence and future contact arrangements; the mother succeeded in obtaining a stay of those issues from the Scottish court on the basis that Scotland was forum non conveniens.
The test for forum non-conveniens was not the practical convenience of witnesses, but whether the alternative forum contended for was one in which 'the case may be tried more suitably for the interests of all the parties and the ends of justice'. The jurisdiction of the local Scottish court was established as of right and, as the court of the dissolution of the marriage, it not only had primary jurisdiction in respect of the welfare of the child of the marriage, but also the duty to satisfy itself that the welfare arrangements were appropriate. That jurisdiction could be abdicated only in exceptional circumstances, which were not present in this case.